LAM CHI KONG v. TAI SIU CHING AND ANOTHER

HCA 344/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 344 OF 2006

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J U D G M E N T

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1. There are five applications before me by the parties in the above action; brief particulars of the applications are set out as follows:

	Date	Applicant	Nature
(a)	20 March 2007	The 2nd Defendant	To strike out the Plaintiff’s claim against the 2nd Defendant.
	Date	Applicant	Nature
(b)	28 March 2007	The 1st Defendant	Extension of time to file and serve defence.
(c)	23 March 2007	The Plaintiff	Translation of the 2nd Defendant’s documents into Chinese.
(d)	26 March 2007	The 1st Defendant	To strike out the Plaintiff’s claim against the 1st Defendant.
(e)	27 March 2007	The Plaintiff	Application for judgment against the 1st Defendant in default of defence.

2. All the 5 applications were listed for 3 minutes hearing on 28 March 2007.  As the Plaintiff claimed that he did not understand the arguments of the two defendants to strike out his claim, I directed that the Defendants should within 28 days lodge with the court and serve on the Plaintiff written submissions in both English and Chinese.  I adjourned all the applications to 27 April 2007 at 11:30 a.m. for hearing.

3. When the applications came before me again, the Plaintiff insisted that I should enter judgment against the 1^st Defendant as he had failed to file and serve any defence.  I refuse the application.  I agree that the law provides that judgment can be entered if no defence is filed within the prescribed period.  The court is rather reluctant to do so without considering the merits of the case.  Usually time for filing the defence is extended in a situation like the present one where the 1^st Defendant has applied to strike out the statement of claim.

4. As to the 2^nd Defendant’s application, the Plaintiff insisted that a translation of all proceedings filed and served by the 2^nd Defendant be supplied to him first.  He claimed that he did not understand their contents.

5. I find that it is a waste of time and effort to do the translation.  The crux of the Defendants’ applications is that the plaintiff has no reasonable cause of action and the claim is frivolous and vexatious.  On 28 March 2007 I had ordered the Defendants to set out their arguments both in English and Chinese to facilitate the Plaintiff to understand the applications.  The Defendants have complied with my directions.  The Plaintiff should have understood what the arguments are.  It is wrong for the Plaintiff to insist to have the translations of the defence and other documents before I deal with the Defendants’ applications.  At the hearing he refused to address me further.  I have no alternative but to deal with the applications accordingly.

6. In this case the Plaintiff claims against the Defendants for damages; he alleged that both Defendants were negligent in handling and defending the criminal cases in which he was prosecuted for selling infringing copies of copyright works on four different occasions at two different places:

(a)	3 July 1999	Shop No. 135, 47-51 Shangtung Street, Kowloon.
(b)	8 July 1999	Shop No. 135, 47-51 Shangtung Street, Kowloon.
(c)	1 August 1999	Shop No. 105, 608 Nathan Road, Kowloon.
(d)	20 July 1999	Shop No. 105, 608 Nathan Road, Kowloon.

7. He was convicted after trial.  To set out the history of criminal proceedings, I have prepared the following chronology:

Chronology
22 February 2000	Ms. Lorinda Lau was instructed to appear for bail application in the Magistrate’s Court but the application was not successful.
9 March 2000	The 2nd Defendant was instructed for bail application in High Court which was granted with bail terms of $25,000 cash and $25,000 surety.
15 May 2000	The amounts of bail were varied by the Principal Magistrate to $30,000 cash and $30,000 surety.
22 June 2000	Brief was sent to the 2nd Defendant to defend the cases.
25 July 2000	Advice on consolidation of the 4 cases given.
November 2000	Trial took place on 1st, 2nd, 3rd, 6th, 7th, 8th and 14th November.
14 November 2000	Cautioned statements after 6 days hearing were ruled admissible.  No further evidence was called by either side.
Chronology (…cont’d)
16 November 2000	The Plaintiff was found guilty.
30 November 2000	The Plaintiff was sent to prison for 36 months.
5 March 2001	The Plaintiff’s application for legal aid was refused.
29 August 2001	The Plaintiff’s appeal was dismissed upon his withdrawal of the appeal.

8. According to the Statement of Claim, the acts of negligence committed by the 1^st Defendant as alleged are those related (a) to the variation of the bail by the magistrate after High Court hearing and (b) to the consolidation of the four cases for trial together.

Bail application

9. On 15 May 2000, at the request of the Principal Magistrate, the 1^st Defendant appeared on behalf of the Plaintiff before the Principal Magistrate who varied the bail terms from $25,000 to $30,000 in case of both cash and surety amount.  In the Plaintiff’s words, a total sum of $50,000 was raised to that $60,000.  The Plaintiff alleged that the 1^st Defendant had not asked the Principal Magistrate for explanation and did not advise him to appeal.  For the purpose of this striking out application, I assume that the Plaintiff’s allegation is true.  I do not find any loss that the Plaintiff has suffered because of such default.  In fact, it needs no advice on appeal if one is not satisfied with a magistrate’s decision.  It makes no difference whether the 1^st Defendant asked the Principal Magistrate to give reasons.  For such minor variation of bail term, I doubt very much any application to the High Court would likely be successful.  It is a waste of costs and effort; it is a course which no sensible lawyer would advise his client to take.

Consolidation of the different cases

10. The Plaintiff said that the 1^st Defendant did not properly advise him about the consequence of the consolidation.  I have read the Magistrate’s findings: I do not find anything which makes me think the consolidation has produced any adverse effect.  The Plaintiff was convicted for the reasons set out in the findings which I intend not to repeat.

11. This is a civil action and the Plaintiff has the burden to prove he has sustained loss and damage.  I do not consider that the Plaintiff has discharged his burden or has put forward any reasonable ground in support of his claim.

Claim against the 2^nd Defendant

12. The allegations against the 2^nd Defendant are as follows:

	(a)      the 2nd Defendant did not cross examine a prosecution witness about the layout plan of the shop;
	(b)      he did not apply for leave to call for handwriting expert or give any advice to him thereon;
	(c)      he did not point out that in two of the alleged transactions no money was involved;
and	(d)      he did not make submission on the various suspicious circumstances.

13. Ms. Chan for the 2^nd Defendant relying on the written submission of Mr. Andrew Bullett submitted two grounds:

	(a)     No reasonable cause of action
and	(b)     Abuse of court process.

Again I have to assume all the allegations against the 2^nd Defendant are not in dispute for the purpose of this decision.  Neither should I refer to the defence filed by the 2^nd Defendant.

No reasonable cause of action

14. The 2^nd Defendant uses, what is commonly known, advocates’ immunity to resist the claim.  It has been a long established rule that barristers enjoy immunity from claim on negligence in performing his duty as an advocate in civil or criminal matters.  There must be a good public policy reason behind.  This immunity has been reviewed and examined in the case of Arthur Hall v. Simons [2002] 1 AC 615.  In effect, the immunity has been abolished in England.

15. In Hong Kong, the Chief Justice in the case of HKSAR v. Hung Chan Wa (FACC 1/2006) at paragraph 31 says:

“Fourthly, it is of the essence of the common law that it evolves to meet the changing needs of the society in which it functions.  Judges have the responsibility and indeed the duty to develop the common law to respond to changing needs.  Thus, when the House of Lords developed the tort of negligence on the neighbour principle in the seminal case of Donoghue v. Stevenson [1932] AC 562, it did not mean that this has been the position under the common law since time immemorial.  Similarly when the House of Lords decided in Arthur J S Hall & Co v Simons [2002] 1 AC 615 not to follow its previous decision in Rondel v. Worsley [1969] 1 AC 191 on the question of the advocate’s immunity, it did not mean that Rondel v. Worsley was wrongly decided.  Rather, the question was reconsidered over three decades later in the light of changes in the law of negligence, the functioning of the legal profession, the administration of justice and public perceptions.  Where the common law has developed in this way, it is usually unnecessary to decide on the precise point of time when the change occurred.  Conceivably, such an issue may arise in a particular case.  Lest there be any misunderstanding, it should be added that no view is expressed on the question whether the common law in Hong Kong on the question of advocate’s immunity should be developed along the same lines as in England.

16. The Chief Justice confirms the following position:

(a)      That the common law should evolve to meet the changing needs of the society.

(b)     There have been changes in the law of negligence, the function of the legal profession, the administration of justice and public perceptions.

(c)      Such an issue may arise in a particular case.

(d)     He expresses no view whether the common law in Hong Kong on the question of advocate’s immunity should be developed along the same lines as in England.

17. Without the assistance of counsel on the subject whether common law should be changed on the advocate’s immunity I leave the matter as it is.  I accept that Hong Kong barristers still enjoy the advocate’s immunity.

Abuse of process

18. As I have said earlier, it is for the Plaintiff to prove his case.  The Plaintiff’s claim could be interpreted to mean that had the 2^nd Defendant not conducted the case negligently, he would have been acquitted.

19. I have read the statement of the magistrate’s findings.  The magistrate relied on a number of factual matters he made his findings.  I cannot agree with the proposition that even if the 2^nd Defendant had not been negligent as alleged, the Plaintiff could have been acquitted.

20. I note the Plaintiff had lodged his appeal against conviction.  In the Notice of Appeal he did not give any ground at all.  He had plenty of time to consider the specific ground.  At no time, he provided the court any ground at all.  Neither did he ever put forward the allegation that the 2^nd Defendant had been negligent.  After more than half a year, when the appeal was about to be heard, he abandoned the appeal.  This shows that he himself had come to the conclusion the appeal was not sustainable.

21. I agree with Mr. Bullet’s written submission that “to allow this action in negligence to go forward would involve relitigating in a civil court a matter to which a full trial in a competent court had been devoted”.  We should not allow litigation to go on and on without a finality.  He has had the chance of putting forward his case in the appeal but has chosen not to do so.  Now he wants to reopen everything at a different forum.  This is not something I would allow.

Conclusion

22. I strike out the Plaintiff’s claims and dismiss the whole action against both Defendants with costs to the Defendants to be taxed if not agreed.