LO KAI BUN v. PONG MAN YI AND OTHERS

HCA 4700/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4700 OF 2002

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R U L I N G

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1.  Having delivered a ruling on 4 July, Miss Lau, for the Defendants, now asks me to re-visit that part of the ruling which requires her to provide particulars of the facts and matters relied on by the Defendants as to how these new documents are said to support the Defendants’ case that the Plaintiff knew the true purpose and effect of the documents that he signed at the 1^st Defendant’s invitation and the relevance and purport of these new documents in respect of the trial.  Mr Yip has objected because he says I am now functus in respect of this ruling and secondly, even if, I am not prevented from having a second look at it, I should not because my decision is the correct one.

2.  I take the question of whether I am functus first.  Mr Yip refers to Chau Mei Lee v. Ng Yee Tim (1996) 4HKC 46 which is a case where the Recorder having allowed amendments to the pleadings and having been addressed in closing speeches on the basis of those amendments decided that he was wrong to have allowed the amendments after he had reserved his judgment and when he delivered judgment, he changed his mind and said that he had been wrong to allow the amendments and proceeded to decide the case on the pleadings as they had been before he had allowed the amendments.  Apart from a number of other errors which he is said to have made and which appear in the report of the case, the Court of Appeal held that he was functus once he had made the order allowing the amendments and he could not recall his order.  At page 52H-I, Ching J.A. (as he then was) held that he had no jurisdiction to recall his order.  Ching J.A. observed that some orders must be drawn up and perfected, and until that has been done, the court retains a jurisdiction to recall.  In this case, the order for the amendments had been an order on an interlocutory application.  Order 42 r. 4(2)(a)(i) read together with r. 4(3)(b) did not and does not require an order giving leave to amend to be drawn up unless the Court directs that to be done.  That had not been done and therefore the Recorder was functus.

3.  The position here is identical in my judgment.  Miss Lau does not accept that, but she submits that if I hold this to be so I can still direct that my order should be drawn up, even now, and thereby give myself the power to recall it and change my mind about it if I am persuaded by her that I was wrong to have made the order in the first place.

4.  I uphold Mr Yip in his submission that I am functus and I do not think that it would be right to employ a procedural device to, after the event, clothe myself with jurisdiction by requiring that the order should be drawn up.  That would be an unattractive course to take.

5.  For this reason, I am not prepared to re-consider my decision on the provision of particulars and in any event, I am of the view that the order that I have made was the correct one.

6.  As a consequence, I will now give further directions as to the amendment of pleadings and the filing of witness statements.

(i) The Defendants must file their particulars within 7 days of the date of the handing down of this ruling and upon the filing thereof the additional documents and witness statement of the 1^st Defendant may be filed.

(ii) The Plaintiff will have 14 days to amend his reply, if so advised.

(iii) The Plaintiff will file any further witness statements consequent upon the new documents and the 1^st Defendant’s witness statement within 28 days of the date of this ruling.

(iv) No further witness statements may be filed without leave of the Court.

[It follows that I uphold Mr Yip as to the order in which witness statement should go in.  Nevertheless, upon leave having been given, the Defendants may file further evidence if they so wish].

(v) Case adjourned part heard to date to be fixed in consultation with counsel’s diaries (7 days to be provided).