CHEUNG KIN CHUNG v. 王景偉 AND OTHERS

HCA 1569/2018

[2021] HKCFI 2847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1569 OF 2018

________________________

________________________

________________________

DECISION

________________________

1.  This is the hearing of the plaintiff’s notice of appeal against the master’s decision pursuant to Order 58 rule 1 of the Rules of the High Court, Cap 4A.

2.  The plaintiff is absent today to pursue the appeal.  For that reason alone, the appeal ought to be dismissed.  But for completeness and for the record, the court would deal with the substance of the appeal in any event. 

3.  The targeted master’s decision was that of Master Rita So dated 14 May 2021.  At the hearing of the 3^rd defendant’s application to strike out, the master proceeded with the hearing notwithstanding the absence of the plaintiff.  The master struck out the statement of claim of the plaintiff and dismissed the action against the 3^rd defendant with costs, and such costs were summarily assessed and payable in 14 days of the service of that order.

4.  By the notice of appeal returned before this court, the plaintiff seeks, according to the notice, that this action be withdrawn against the 3^rd defendant.  Obviously, upon dismissal of the action by the master, there is no longer an action on foot to be withdrawn by the plaintiff as such.  But taking the matter as an appeal against the master’s decision to strike out, the appeal itself is out of time. According to Order 58 rule 1(3), the notice of appeal must be lodged within 14 days of the making of the master’s order being appealed.  So the plaintiff was slightly more than a week late.

5.  The rules provide for the discretion of the court to order otherwise and, hence, extension of time for appeal.  In this respect, the solicitors for the 3^rd defendant pointed out the essential factors that the court would consider in considering whether extension of time should be given.  That said, they are sensible enough in acknowledging that perhaps a neutral stance should be taken given the fact that the plaintiff nevertheless lodged the notice of appeal within 14 days after the service of the master’s order.

6.  The appeal, if entertained, is a rehearing of the matter before the master.  In other words, this court is supposed to rehear the 3^rd defendant’s application to strike out.  The principles for striking out are trite.  It is only in clear and obvious case that the court will strike out proceedings.

7.  The 3^rd defendant was amongst five defendants in this action commenced by the plaintiff in 2018.  According to the 3^rd defendant, the writ actually expired in July 2019, prior to service on the 3^rd defendant. 

8.  In the statement of claim, the plaintiff claims against the 3^rd defendant for, literally, misrepresentation by them as his solicitor.  Briefly, the 3^rd defendant was assigned in March 2017 by the Director of Legal Aid to act for the plaintiff in his intended claim for alleged injury sustained in an assault involving the other defendants back in 2015.  Upon taking instructions, the 3^rd defendant gathered from the plaintiff that he intended to claim against the 2^nd and the 4^th defendants for vicarious liability for the negligence of their employees.  He also intended to claim against the 5^th defendant for misfeasance and another person under the employ of the 2^nd defendant at the time.

9.  Regarding this person primarily responsible (according to the plaintiff)  for the assault, the record shows that the plaintiff had applied to the magistrate for the issuance of a private summons but that was refused, and, upon appeal, was dismissed by the Court of First Instance in April 2017.

10.  What the 3^rd defendant did as the assigned solicitors was to give advice at that stage to the plaintiff as to the merit of his intended claim.  The advice given, according to the 3^rd defendant, was that the claim would be unsustainable because of the lack of reasonable cause of action and evidence, save and except the intended claim against the 1^st defendant, ie the party allegedly primarily liable for the actual assault.  However, according to the 3^rd defendant, they received no further instructions from the plaintiff upon such advice.

11.  Eventually, the Director of Legal Aid discharged the legal aid certificate in March 2018.  Since then, the 3^rd defendant received no further contact from the plaintiff until, of course, the commencement of this action in 2018.

12.  As to the claim for so-called misrepresentation by the 3^rd defendant, the statement of claim endorsed with the writ actually contains no particular background fact or description of the remedy sought by the plaintiff against the 3^rd defendant.  Considering the statement of claim alone, pursuant to Order 18 rule 19(1)(a), it could be said that the claim actually discloses no reasonable cause of action against the 3^rd defendant.  Under rule 19(1)(b), it could also be said that there is no practical way for the 3^rd defendant to actually know the case that they have to answer when the claim is put that way. 

13.  In his affirmation filed in support of today’s appeal, the plaintiff explained that he did not know how to proceed.  He did not know how to withdraw the action against the 3^rd defendant. Yet the fact remains that he did not discontinue the action again the 3^rd defendant, and that caused the 3^rd defendant to eventually take out the summons to strike out.

14.  I see from the plaintiff’s affirmation for today’s purpose that he emphasises that he complains about the alleged wrongdoing of the other parties to the incident that gave rise to his intended claim, presumably concerning the 1^st and the 2^nd defendant. He also set out his dependence on social welfare assistance and thus his financial inability to meet the costs order, presumably the order made by the master.

15.  Considering the appeal as a rehearing of the matter before the master, and therefore considering the pleading and the affirmation evidence before the master as well as the written submission of the 3^rd defendant, I have no doubt that I would reach a similar conclusion as that of the master in striking out the statement of claim and, hence, dismissing the action against the 3^rd defendant. 

16.  I would also reach the same conclusion of the master in respect of the incidence of the costs liability.  As to the amount of costs, this of course is a matter of the discretion of the master.  For the purpose of the appeal, I am not satisfied that there is any basis for questioning if such discretion of the master was exercised wrongly in breach of the applicable principle in the circumstances of this case. 

17.  For all these reasons, on top of the absence of the plaintiff to pursue the appeal, even assuming that the extension of time for appeal is allowed, I would still dismiss the appeal.  I do dismiss the appeal.

(Discussion re costs)

18.  I summarily assess the costs of and occasioned by this appeal to be in the sum of HK$6,000, payable in 14 days by the plaintiff.