LAM CHEUK TING v. HO KWAN YIU

HCA 2127/2019

[2025] HKCFI 1720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2127 OF 2019

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D E C I S I O N

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1.  This is the Pre-trial Review of these proceedings. The trial is scheduled to commence on 4 August 2025.

2.  Before this Court are 2 summonses which this Court has to deal with first:

(a)  Summons of 25 March 2025 taken out by the defendant (“D/Summons”) for leave to re-amend his Amended Defence to plead and rely on the plaintiff’s conviction on 12 December 2024 of one count of riot in DCCC 1106/2020 and DCCC 1132/2022 (the “Conviction”); and

(b)  Summons of 9 April 2025 taken out by the plaintiff (“P/Summons”) for an order that, in the event of this Court granting the defendant leave to amend as sought, this action and the trial be adjourned sine die with liberty to restore, pending the determination of the plaintiff’s appeal to the Court of Appeal against the Conviction.

3.  This action arose out of what has been dubbed the “721 Incident” or the “Yuen Long Incident” that took place on 21 July 2019. The plaintiff’s case is that certain words published subsequently by the defendant in October 2019 in relation to the plaintiff’s alleged role, participation and conduct in and in the course of that event are defamatory in nature. The defendant in defence relies on justification, fair comment and qualified privilege.

4.  By the D/Summons, the defendant seeks to plead and rely on the Conviction. §§36A and 36B are proposed to be added to the Amended Defence:

(a)  The main part of the proposed §36A reads as follows:

Further, the Plaintiff was convicted at the District Court of Hong Kong Special Administrative Region on the 12^th day of December 2024 of one count of riot contrary to section 19 of the Public Order Ordinance (Cap. 245). The conviction is conclusive evidence and is relevant to the Plaintiff’s participation in the continual assembly and violence being carried out in the Yuen Long Incident. The Defendant will refer to and rely on the above Court ruling and the said conviction of the Plaintiff at the trial of this action, including the following particulars.

(b)  A number of “Particulars of Finding of Facts” are provided under §36A;

(c)  Under §36B, 6 sub-paragraphs of findings stated to have been made by His Honour Judge Stanley Chan in his Reasons for Verdict of 12 December 2024 and Reasons for Sentence of 27 February 2025 are pleaded.

5.  Sections 62 and 64 of the Evidence Ordinance are engaged. In particular, sections 62(1) to (3) and 64 (1) to (3) stipulate as follows:

62. Convictions as evidence in civil proceedings

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in Hong Kong shall, subject to subsection (3), be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; but no conviction other than a subsisting one shall be admissible in evidence by virtue of this section.

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in Hong Kong—

(a) he shall be taken to have committed that offence, unless the contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge on which the person in question was convicted, shall be admissible in evidence for that purpose.

(3) Nothing in this section shall prejudice the operation of section 64 or any other enactment whereby a conviction or a finding of fact in any criminal proceedings is for the purposes of any other proceedings made conclusive evidence of any fact.

…

64. Conclusiveness of convictions for purposes of defamation actions

(1) In an action for libel or slander in which the question whether a person did or did not commit a criminal offence is relevant to an issue arising in the action, proof that, at the time when that issue falls to be determined, that person stands convicted of that offence shall be conclusive evidence that he committed that offence; and his conviction thereof shall be admissible in evidence accordingly.

(2) In any such action in which by virtue of this section a person is proved to have been convicted of an offence, the contents of any document which is admissible as evidence of the conviction, and the contents of the information, complaint, indictment or charge on which that person was convicted, shall, without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the conviction was based, be admissible in evidence for the purpose of identifying those facts.

(3) For the purposes of this section a person shall be taken to stand convicted of an offence if but only if there subsists against him a conviction of that offence by or before any court in Hong Kong.

6.  The following points are apparent from those 2 sections:

(a)  Sections 62(1) and 64(3) should be noted. The law allows subsisting convictions to be relied upon. A conviction, albeit under appeal, is in my view nonetheless subsisting;

(b)  A corollary of the above is however this, that if the conviction concerned has by the time of the civil trial ceased to be subsisting, it can no longer be relied upon. Any conviction which has been quashed on appeal is in my view no longer subsisting;

(c)  The above reading is consistent with the wording of section 64(1), that its operation is restricted to the scenario of a defendant who, at the time when the relevant issue falls to be determined, “stands convicted of that offence”;

(d)  But if section 64(1) applies, for purposes of defamation actions, which the present case is one, the conviction shall be conclusive evidence that the person has committed that offence, and that the contents of the documents and materials specified in section 64(2) shall then be admissible for the purpose of identifying the facts on which the conviction is based.

7.  There can be little doubt that the Conviction and His Honour Judge Stanley Chan’s related findings bear relevantly upon the issues in the present case.

8.  There is no delay in the defendant taking out the D/Summons. Sentence was only passed on 27 February 2025. The D/Summons was taken out on 25 March 2025.

9.  I have considered the general principles on amendment of pleadings as discussed in Chow Lily v Chow Wai Wai Violet [2024] HKCFI 3027 cited to me. In my view, the facts of this case justify this Court exercising my discretion allowing the D/Summons. I see no reason why the defendant should be denied the opportunity to rely on the Conviction.

10.  Mr Shum for the plaintiff does not dispute the relevance of the Conviction. He has mounted no serious objection against the D/Summons. The plaintiff rather says that he is now appealing against the Conviction. He seeks via the P/Summons leave that if this Court is to allow the D/Summons, this case and the trial herein be adjourned sine die pending the determination of his appeal before the Court of Appeal.

11.  Mr Adrian Leung on behalf of the defendant objects to the P/Summons. He cites to me Burberry Limited v Polo Santa Roberta Limited (HCA 1617/2010, 9 May 2011), and a number of cases which subsequently applied it. The discussions by Deputy Judge Queeny Au-Yeung (as she then was) in Burberry were on the general position of there being an overlap between a civil action and pending criminal proceedings, hence giving rise to the concern of early disclosure of the defendant’s defence for the purpose of the civil proceedings (due to the need to file pleadings), which for the criminal proceedings he is entitled to withhold till the criminal trial, and hence whether the civil trial should as a matter of general rule be stayed pending the outcome of the criminal trial. There is no such general rule.

12.  The position is different here. Here, we are concerned with a specific situation, namely, whether there should be a stay of the civil action where the defendant is seeking to rely, against the plaintiff, the Conviction which the plaintiff is appealing.

13.  §18/7A/6 of the Hong Kong Civil Procedure 2025 suggests this:

Appeal against conviction – The court will not finally dispose of civil proceedings in reliance on a criminal conviction alone while the conviction is subject to appeal or liable to be quashed.

14.  The authority cited in support of that statement is Re Raphael [1973] 1 W.L.R. 998. The case is on point. Therein, the plaintiff applied to the court to pronounce against a purported will as being a forgery. At the time of the application, one of the executors had been convicted of forging the will. That conviction was however subject to a pending appeal. Goulding J expressed his view that a conviction under appeal is a subsisting one. He nonetheless ordered the related civil proceedings to be adjourned pending determination of the criminal appeal. He observed at 1001H to 1002C as follows:

Having considered the [Civil Evidence Act of 1968][1] at leisure, it does not seem to me that I can disregard the pending appeal, even though the conviction is a subsisting one for the purposes of the Act. Parliament cannot have intended that civil proceedings should be finally disposed of in reliance on a conviction subsequently liable to be quashed. The injustice of such a situation is especially apparent in relation to section 13 of the Act, where under proof of conviction is in actions for libel or slander not merely admissible, but conclusive, evidence of the offence. Why then does the statute not make special provision for the case? The answer, I think, may be twofold. First, it must be comparatively rare for a civil action to come to trial before criminal proceedings arising out of the same facts are disposed of, certainly in the class of personal injury cases which had notoriously drawn attention to the need for a change of law. Secondly, the legislature was well aware that civil courts have power to adjourn a trial when it is expedient in the interest of justice. It probably assumed that where possible injustice might otherwise result the hearing of the civil action would always be adjourned until after the determination of the criminal appeal.

15.  This Court certainly has the case management power to “stay the whole or part of [this] proceedings … either generally or until a specified date or event” – O.1B, r.1(2)(e).

16.  As summarized in §1B/1/2 of Hong Kong Civil Procedure 2025:

The correct approach in exercising case management powers with respect to an application for a temporary stay of proceedings is to consider the balance of convenience and fairness as between the parties (Chen Pao Tzu v Chen Sheng Kuei [2020] HKCFI 1518, [16], citing Re Chime Corp Ltd (HCMP 4146/2001 …).

17.  With reference to O.1B, r.1(2)(e), Queeny Au-Yeung J observed in Poon Ka Man Jason v Cheng Wai Tao [2018] HKCFI 771 as follows:

36. The court has discretion, as a matter of case management, to grant a stay of proceedings generally or until a specified date or event: High Court Ordinance, Section 16(3); Order 1B, rule 1(2)(e) of the Rules of the High Court (“RHC”).

37. Where, as here, the action was commenced as of right, the court should only grant a stay when there are “very good reasons” and in “rare and compelling circumstances”. The stay must not cause injustice to the Plaintiff, and the Defendants must show that continuing the proceedings would be unjust to them. See: Zhang Xiuhong v Liu Wenchen & ors (HCA 2118/2012, 20 July 2017), §34, per Au-Yeung J, citing Ng J’s judgment in AIG Europe Ltd & ors v Fast-Link Express Ltd & ors (HCAJ 114/2014, 10 January 2017), §§9-13. The ultimate question is what would serve the ends of justice.

38. Exercise of discretion would involve balancing between (1) possible wastage of Court’s time and resources and also parties’ time and costs (if there is no stay) on the one hand and (2) possible delay of the proceedings for a short period of time (if there is a stay) on the other hand: see The Al Dhabiyyah [1999] 4 HKC 414, at p 420A-F.

39. The court must bear in mind that the underlying objectives of the court is to increase cost-effectiveness of court proceedings; ensure that a case is dealt with as expeditiously as is reasonably practicable; promote reasonable proportion and procedural economy in the conduct of proceedings; and to facilitate settlement of disputes: Order lA, rule 1(a), (b), (c) and (e) of the RHC.

18.  Trial dates are to be treated as milestone dates. They are immovable save in the most exceptional circumstances. I bear that in mind.

19.  Applying the above, and for the following reasons, I allow the P/Summons:

(a)  When considering the P/Summons, I need to consider how my discretion under O.1B, r.1(2)(e) should be exercised. It involves, as discussed above, a balancing exercise;

(b)  As a matter of principle, I respectfully agree with Goulding J’s observations in Re Raphael, that in a situation like the present one, I cannot disregard the pending appeal, even though the conviction is until quashed subsisting;

(c)  I reiterate, according to section 64(1) of the Evidence Ordinance, the conclusiveness of convictions for purposes defamation actions, which the present case is one. The potential unfairness goes beyond other types of cases;

(d)  In conducting the balancing exercise, I do not and cannot go into the details of the pending criminal appeal. I cannot and ought not express any view on its merits;

(e)  But in the vast majority of cases, the present one in my view being one, the mere fact that a criminal appeal is pending raises concern of the nature discussed by Goulding J in Re Raphael. I need to heed the illogicality and sense of grievance that one may justifiably have or share if this Court is to allow the defendant to rely on the Conviction, to the extent that certain facts will be proved against the plaintiff conclusively, but at the same time disregard the fact that the plaintiff is appealing against the same;

(f)  If I am to allow the amendment but dismiss the stay, I need to heed the possibility of this Court determining the case on matters which may, depending on the outcome of the criminal appeal, turn out to be no longer subsisting. The potential unfairness to the plaintiff would be very substantial;

(g)  I need to ensure that the court’s procedures are used in a logical, fair and cost-efficient manner. I need also to prevent time and costs wastage by the parties. I need to heed the obvious costs and procedural inefficiency, both for the Courts and the parties, in any need for, depending on the results of the civil trial and the criminal appeal, revisiting the results of the civil trial;

(h)  In the course of submissions this morning, Mr Shum realistically informs me that if the plaintiff is unsuccessful in his criminal appeal, the reality is that he will have no case against the defendant for defamation. The contrast, as put by Mr Shum, is a wasted 10-day trial if the criminal appeal is successful, and no trial if the criminal appeal is not. This is a relevant consideration;

(i)  Mr Leung in opposition refers me to China Metal Recycling (Holdings) Limited (in compulsory liquidation) v Chun Chi Wai [2021] HKCFI 378. But in that case, as observed by Deputy Judge MK Liu in §220 of the judgment, the conviction has no bearing on the results of the case given the existence of other evidence. It was also not a defamation case. China Metal Recycling is very different from the present one;

(j)  In terms of possible delay, the relevant events took place in 2019. Parties have not urged before me any pressing urgency for the resolution of the civil disputes between the parties. Delay is always a concern, but it is not the overriding factor here;

(k)  Mr Leung also emphasizes that trial dates are milestone dates. I have reminded myself of this. But the facts in this case are in my view most exceptional.

20.  On the facts of this case, and for the reasons set out above, I grant the defendant leave to amend and to rely on the Conviction. On that basis, the P/Summons becomes engaged. On balance of convenience and fairness as discussed, and having conducted the balancing exercise as I have above, I have formed the view that the trial should be adjourned sine die pending the determination by the Court of Appeal of or any withdrawal by the plaintiff of the criminal appeal. The words “or any withdrawal by the plaintiff of” are added for avoidance of doubt, such that if the plaintiff ultimately and for whatever reason opts to withdraw the appeal, the stay will be lifted. Having heard parties, I also direct that the plaintiff shall inform the defendant within 7 days of the disposition of his appeal before the Court of Appeal.

21.  For the above reasons, I allow both summonses. In the case of the P/Summons, I update the terms slightly for avoidance of doubt, as discussed above.

22.  On costs, I am of the view that both summonses are justifiably taken out. I order that costs in respect of both summonses are to be in the cause of the trial, with certificate for counsel. This also accords with counsel’s joint view.

23.  I also record, for the avoidance of doubt, that any requirement on the plaintiff to file any amended reply is also suspended by the order adjourning the action and the trial sine die.