WONG WAI KEUNG v. COMMISSIONER OF POLICE

HCMP 1222/2020

[2021] HKCFI 3609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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BETWEEN

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D E C I S I O N

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1.  By Summons dated 23 September 2021 (the “Plaintiff’s Summons”) and as clarified by the Plaintiff’s Skeleton Submissions lodged for today’s hearing, the plaintiff seeks effectively an extension of 47 days until 9 November 2021 to serve P’s Non-Digital Schedules (all due on 23 September 2021) on the Commissioner (ie 28 days from the date of the order to be made herein).

2.  This is the 7^th application for extension of time made by the plaintiff under the Protocol, albeit the first application regarding non-digital materials.

3.  On 2 September 2021, the joint inspection of all the non-digital materials seized was completed. The only reason put forward is that the plaintiff is seeking counsel advice on the preparation of P’s Non-Digital Schedules (see paragraph 10 of the plaintiff’s 7^th Affirmation). But he has not provided any reasons for his failure to meet the deadline of 23 September 2021.

4.  As pointed out by the Commissioner, the plaintiff/the plaintiff’s Designated Representatives attended all 16 of the joint inspection sessions for non-digital materials and was assisted/attended by at least one solicitor and one counsel on each occasion. I agree that the seeking and rendering of legal advice should have been ongoing for months, and is not a new matter on which counsel’s advice has to be sought afresh.

5.  In the circumstances, I agree that an unless order is necessary to ensure the proper conduct of these proceedings and instill a necessary sense of discipline in the plaintiff’s compliance of court orders.

6.  Accordingly, I order that unless the plaintiff serve the P’s Non-Digital Schedules by 5pm on 28 October 2021:

(1) the plaintiff shall be debarred from serving any P’s Non-Digital Schedules in respect of the relevant non-digital materials, and his LPP and JM claims in respect of the materials shall be dismissed; and

(2) the defendant shall be at liberty to inspect, extract and/or otherwise access or use for investigation the relevant non-digital materials.

(Discussion re costs)

7.  There is no dispute that the plaintiff should pay for the costs, the only dispute is the basis of taxation.

8.  Like the last occasion, I am of the view that the conduct of the plaintiff is not so “under-par” to make it appropriate to penalise him by an order for indemnity costs.

9.  Today’s position is a fortiori as this is the first time extension sought by the plaintiff for non-digital items.

10.  Accordingly, I order that the costs of and incidental to the Plaintiff’s Summons be to the defendant, such costs are to be taxed on the party-and-party basis if not agreed.