NG CHO CHU JUDY v. CHAN WING HUNG

DCPI 655 /2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 655 OF 2015

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DECISION

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Background

1. In this case, the plaintiff claims against the defendant for damages of personal injuries resulting from 2 alleged assaults by the defendant on 15 March 2013 (“First Assault”) and 26 July 2014 (“Second Assault”) respectively.

2. Through a number of correspondences between the solicitors for both parties, the parties had exchanged documents prior to the commencement of this action. On 27 March 2015, the plaintiff issued the writ of summons. On 28 March 2015, the plaintiff took out a summons for an order of discovery of “all statements given to the police by the defendant in relation to the First Assault in 2013” (“the Police Statement”).

3. The first call-over hearing of the plaintiff’s summons was heard by the learned master on 16 April 2015. On that day, by consent, an order of discovery of the Police Statement was granted. Then, Mr Ching, solicitor appearing for the plaintiff, applied for costs on the ground that costs should follow events. The defendant, who was acting in person at that time, opposed.

4. Argument for costs of the plaintiff’s summons was then adjourned to 8 May 2015. On that day, Mr Chan, solicitor appearing for the defendant, informed the learned master that the defendant had already complied with the order of discovery and confirmed that the Police Statement so disclosed was identical to those that had already been disclosed on 6 March 2015. Mr Chan submitted that the plaintiff’s summons was premature and unnecessary and therefore applied for costs on full indemnity basis.

5. On 15 May 2015, the learned master decided that “costs of and incidental to the plaintiff’s summons to be paid by the plaintiff to the defendant forthwith, to be taxed if not agreed” (“the Decision”).

The appeal

6. By way of a Notice of Appeal filed on 28 May 2015, the plaintiff appeals against the Decision. 

Legal principle

7. In this appeal, Mr Ching submitted that,

“This appeal is a de novo hearing. The matter of costs is within the discretion of the court. The learned Judge hearing the appeal will have to exercise her discretion judicially and afresh. It is not necessary for the learned judge to find fault or error of the learned Master before making a different order from that of the learned Master.”[1]

8. It is true that “an appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time” (see Hong Kong Civil Procedure 2015, Vol 1, §58/1/2).

9. However, this appeal only relates to the order of costs made by the learned master. Hong Kong Civil Procedure 2015, Vol 1, §58/1/6 clearly states that :

“In general, a judge in chambers will not allow an appeal from a master’s costs order unless it is unreasonable or the master erred in law…… Paul Y-ITC Constructions Ltd v Kin Shing Co Ltd [1999] 1 HKC 511 at 515 per Sakhrani J : “as this is an appeal as to costs only from the discretion of the master, such application should not be allowed unless it can be shown that the order made by the master was unreasonable or erred in law, ie, if he either failed to take into account proper matters or took into account matters that should not have been taken into account.”

10. I bear in mind this legal principle in this appeal.

Discussion

11. Practice Directions 18.1, correctly referred to by the learned master in the Decision, requires that a letter of claim should be sent no later than 4 months prior to the commencement of proceedings, and the proposed defendant should reply constructively. If such reply is received within one month, the parties should over the next 3 months communicate constructively and provide mutual disclosure of information and documents with respect to the issues on liability and quantum as are reasonably required for attempting to settle the claim in whole or in part.

12. The learned master, before making up her mind, succinctly summarized all the relevant pre-action correspondences exchanged between both parties at §§7 to 23 of the Decision, which are reproduced below :

“7. The very first letter dated 12 November 2014 was a standard pre-action letter where the defendant was first informed of the intended personal injury action and was asked to disclose documents, inter alia, the police statements.

8. The defendant’s solicitors replied on 12 December 2014, in turn asked the plaintiff’s solicitors to disclose documents, inter alia, the plaintiff’s police witness statements. The defendant’s solicitors made it clear that the action was still at an early stage, as investigation was on-going, they invited the plaintiff’s solicitors to refrain from commencing legal proceedings.

9. The plaintiff’s solicitors replied on 3 January 2014, theycomplained the defendant’s solicitors failed to disclose the defendant’s police statements.

10. On 12 January 2015, the defendant’s solicitors agreed to exchange the defendant’s police statements with the plaintiff, and alerted the plaintiff’s solicitors that mutual disclosure of information and documents shall be done within 3 months in accordance with paragraph 19 of the Practice Directions 18.1.

11. The plaintiff’s solicitors issued two letters dated 21 January 2015 and 3 February 2015 to press the defendant’s solicitors for exchange of their respective police statements.

12. The defendant’s solicitors replied on 3 February 2015, stating (i) they are in possession of two police records of interview of the defendant relating to the 2014 assault; (ii) the defendant is retrieving relevant police record of interview relating to the 2013 assault and those will be ready for exchange in due course.

13. On 4 February 2015, the plaintiff’s solicitors demanded exchange of police statements in relation to the 2013 assault within next 7 days.

14. On 5 February 2015, the defendant’s solicitors disclosed 2 police records of interview relating to the 2014 assault to the plaintiff’s solicitors.

15. On 6 March 2015, the defendant’s solicitors informed the plaintiff’s solicitors that police statements for both 2013 and 2014 assaults were ready for exchange. In the 2^nd letter dated the same date, the defendant’s solicitors disclosed (i) two police notebook records; and (ii) a record of interview.

16. For the first time, on 10 March 2015, the plaintiff’s solicitors requested the defendant to confirm he gave no witness statement to the police in relation to the 2013 assault.

17. On 13 March 2015, the defendant’s solicitors complained the plaintiff failed to disclose the witness statement of the plaintiff relating to the 2013 assault.

18. On 16 March 2015, the plaintiff solicitors complained repeatedly that they have not received any statement made to the police by the defendant relating to the 2013 assault.

19. Letters dated 17, 18 and 20 March 2015 contained clarifications from both parties.

20. The plaintiff’s solicitors complained to the defendant’s failure to disclose the police statements in their letters dated 24 and 27 March 2015.

21. On 27 March 2015, the plaintiff issued the Writ of Summons.

22. On 28 March 2015, the plaintiff issued and served the plaintiff’s summons on the defendant.

23. On 13 April 2015, the defendant’s solicitors stated the three statements disclosed in the 2^nd letter dated 6 March 2015 were all the statements the defendant had received from the police in relation to both the 2013 and 2014 assaults.”

13. I find that the learned master had correctly summarized contents of all the relevant pre-action correspondences in the Decision.

14. The learned master decided that there was no fault on the part of the defendant’s solicitors, who acted promptly in accordance with paragraph 19 of Practice Directions 18.1, and had disclosed the Police Statement to the plaintiff’s solicitors on 6 March 2015.

15. The learned master further decided that the plaintiff’s summons was premature. In light of the conducts of the parties, the plaintiff was ordered to pay costs, though not on an indemnity basis.

16. In this appeal hearing, Mr Ching emphasized that at all material times, the plaintiff was demanding the police statements for both the First Assault and the Second Assault. In reply, the defendant’s solicitors merely gave a police statement in relation to the First Assault contained in a police notebook instead of in the form of a record of interview (Pol 857). The defendant’s solicitors never openly admitted that there was no record of interview given by the defendant in relation to the First Assault. Mr Ching therefore submitted that the plaintiff was at that juncture led into belief that such a record of interview existed and the plaintiff’s summons was necessary.

17. In reply, Mr Chan pointed out that the defendant’s solicitors never said that the defendant made any record of interview (Pol 857) to the police in relation to the First Assault. Further, from all correspondences exchanged between the defendant’s solicitors and the police, it transpires that the defendant’s solicitors had endeavoured in locating all relevant documents from the police. They did not hide any documents retrieved from the police. Therefore, from as early as 3 February 2015, the plaintiff had been put on notice that the defendant did not have in his possession any police statement for the First Assault to produce. Therefore, whatever the defendant was able to produce must be those obtained from the police.

18. Mr Chan further submitted that although the defendant consented to the plaintiff’s summons, it was simply in order to remove the possibility that the police might have overlooked their records. An extra step of making a further inquiry with the police did not mean that the plaintiff’s summons was properly (or not pre-maturely) taken out.

19. Having considered all the correspondences, I am not persuaded by Mr Ching’s submission.

20. The defendant’s solicitors had made constructive reply to the plaintiff’s solicitors. The defendant did not hide any document from the plaintiff. The indisputable fact is that Police Statement was disclosed prior to the plaintiff’s summons.

21. Mr Ching criticised that the defendant had never made it clear that if a record of interview (Pol 857) existed. In this regard, I accept the learned master’s reasoning at §30 of the Decision :

“I accept Mr Chan’s submission that in the police notebook disclosed in the 2^nd letter on 6 March 2015 was in fact a cautioned statement of the defendant taken on the date of the assault. It is expected the request of the plaintiff’s solicitors has been answered. As Mr Chan has rightly submitted, there is no hard fast rule that statements made to police must be in form of a Pol 857, it is redundant for the defendant to make such admission at all.”

22. The learned master had grasped all relevant facts and was totally correct in holding that in exercising the discretion as to costs, the court should take into account, inter alia, the underlying objectives as set out in Order 1A rule 1 of the Rules of District Court and the conduct of the parties. The correspondences exchanged between the parties show that at all times, the defendant’s solicitors were willing to, and in fact did, disclose all relevant statements, including the Police Statement, to the plaintiff’s solicitors before the plaintiff’s summons.

23. Although the defendant consented to the plaintiff’s summons, the learned master explained clearly the situation in §31 of the Decision :

“It is worth mentioning the defendant ….. has indicated he has already disclosed all statements made to police to the plaintiff’s solicitors in call over hearing on 16 April 2015. Yet he has made a second attempt to reconfirm with the police that they have not left out any statements made by him in relations to the 2013 assault. …. Being sensible, he conceded to an order for disclosure.” (my emphasis)

24. The “concession” made by the defendant on the first call over hearing date was apparently not because of any non-disclosure of document. It was, as rightly pointed out by the learned master, merely a sensibly decision to have the matter reconfirmed.

25. At the end, the plaintiff’s summons was unnecessary as the defendant had already disclosed the Police Statement at the pre-action stage. In the circumstance, the plaintiff’s summons served no useful purpose. It was correctly described by the learned master as “pre-mature”.

Conclusion

26. I find that Mr Ching failed to point out to me any error on the part of the learned master. To conclude, the Decision was not unreasonable. The learned master did not fail to take into account proper matters or took into account matters that should not have been taken into account. Further, I fully agree with the reasons given by the learned master in the Decision. So, even if I were required to exercise my discretion afresh, I would have arrived at the same decision as the learned master did.

27. In the circumstance, the appeal is dismissed.

Costs

28. Costs should follow event.  There be a nisi order that the costs of and occasioned by this appeal be to the defendant, to be taxed if not agreed, and to be paid forthwith. The cost order nisi will become absolute after 14 days in the absence of any application to vary the same.

[1] Paragraph 1 of the plaintiff’s skeleton submission