LAM CHEUK TING v. HO KWAN YIU

HCA 2127/2019

[2023] HKCFI 454

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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A.  Introduction

1.  Before this Court is a summons for relief against sanction.

2.  This is a defamation case involving 2 high profile public figures who were Legislative Council members on the day the alleged defamation occurred. The Defendant was and is additionally a practising solicitor.

3.  The Plaintiff (“Mr Lam”) alleges that the Defendant (“Mr Ho”) has uttered offending words on 22 October 2019 in his live Facebook video open to public viewing, the gist of which was that Mr Ho accused Mr Lam of bringing people to Yuen Long on 21 July 2019 (“the Incident”) and carried out 4 allegedly provocative actions. Mr Lam’s case is that the statements of fact were true. Mr Ho pleads justification, fair comment and qualified privilege.

4.  On 3 January 2022, Master SH Lee ordered, amongst others, that unless by 4 pm on 25 February 2022, Mr Ho took out an application for trial with jury, he would be taken to have no such application for this action (“Unless Order”).

5.  25 February 2022 went by without Mr Ho taking out the application. The Unless Order took effect. The action shall thus proceed on the basis that the trial would be without a jury.

6.  On 16 May 2022, Mr Ho took out the present Summons for relief against the sanction imposed by the Unless Order, seeking:

(1)  Extension of time for compliance with the Unless Order until 16 May 2022 and that retrospective leave to take out an application be given; and

(2)  An order that the action be tried before a jury.

7.  The grounds of the application are that:

(1)  The Unless Order did not impose a sanction for non-compliance (“No Sanction Ground”);

(2)  On time extension, Mr Ho was waiting for the outcome of a summons in a Related Action, on which the Court has to determine if a jury trial was suitable. Soon after the decision, in favour of a jury trial, was handed down, Mr Ho took out the Summons (“Explanations for Delay Ground”);

(3)  This case is suitable for jury trial due to the parties being high profile political figures and facts involving a significant social movement for Hong Kong, similar to the situation in the Related Action (“Suitable for Jury Trial Ground”).

8.  The Summons is opposed by Mr Lam who submits that Mr Ho’s non-compliance was deliberate. In any case, the modern trend is against having a jury trial and this case does not warrant one.

B.  Ground 1 – No Sanction Ground

9.  The starting point is the natural ordinary meaning of the words used in an order in light of the syntax, context and background, which is a fact sensitive exercise: Cosimo Borelli v Allen Tak Yuen Chan, HCMP 2174/2014, unrep, 12 November 2015, Chow J (as he then was) at §11.

10.  I agree with Mr Ho that the Unless Order has not imposed a sanction for non-compliance. The natural and ordinary meaning of the words used in the Unless Order merely states the obvious: that Mr Ho has not taken out an application. It entitles the Court or Mr Lam to take the view that there will be no trial by jury and chart the course of the action on that basis. The Unless Order does not ban Mr Ho from making an application for trial by jury.

11.  Mr Ho may make an application if, for example there are change of circumstances or other good reasons that emerge after 25 February 2022, and Mr Lam would not be prejudiced by the grant of such application. Accordingly, it is not necessary to consider reliefs from sanction under Order 2, rule 5 of the Rules of the High Court (“RHC”).

12.  However, that does not mean that the Unless Order has no effect. Under Order 1A, rule 1(a) and (b) and rule 3 of RHC, the parties and their legal representatives have a duty to assist the Court to further the underlying objectives, including to increase the cost-effectiveness of any practice and procedure to be followed and to ensure that a case is dealt with as expeditiously as is reasonably practicable. In furthering those underlying objectives, the Court shall actively manage a case to fix timetables or otherwise control the progress of the case.

13.  A case management order should be adhered to so that all parties and the Court know with certainty where a case is heading towards. To allow a party to unilaterally change the case management order to suit his own pace of litigation defeats the case management exercise. The fact that no trial has been fixed would not assist that party if it was his own delay in complying with an unless order which has prevented a trial from being fixed. He cannot take advantage of his own wrong.

14.  4 factors are significant in an application for time extension, namely the length of delay, explanation for delay, merits of the substantive application, and prejudice to the other party. If the time extension is under an unless order of the present kind, the applicant has to additionally show substantial change of circumstances making the unless order inappropriate.

C.  Ground 2 – Explanations for Delay Ground

15.  The Summons was issued on 16 May 2022, with a delay of more than 2½ months from 25 February 2022. The principal explanation for the delay is that Mr Ho was waiting for the outcome of the Related Action.

16.  The Related Action is Ho Kwan Yiu v Kwok Wing Hang Dennis & others [2022] 2 HKLRD 137. Mr Ho sues, amongst others, Mr Lam for defamation in relation to offending words said a few days after the Incident against Mr Ho. Mr Ho claims that both Actions involve substantially the same issues in fact and law.

17.  The parties in the Related Action entered into a consent summons dated 10 November 2021 agreeing to a jury trial. The Court initially directed a hearing but eventually took time to consider written submissions and dispensed with the hearing.

18.  Mr Ho took the view that if jury trial was held not to be appropriate in the Related Action, he would not make an application for the same in the present action and vice versa. The aim was to save costs in bringing an unnecessary application pre-maturely. The failure to comply with the Unless Order was not intentional or contumelious, he claimed.

19.  The Court was under a General Adjournment Period (“GAP”) from 7 March 2022 to 11 April 2022, given the state of the COVID pandemic at that time.

20.  This Court handed down a decision in the Related Action in favour of a jury trial on 18 March 2022 (“the Decision”).

21.  Mr Ho claims to have taken out the present Summons promptly once he had had a chance to consider the Decision. No prejudice would be caused to any party as no trial has been fixed. In fact, Mr Lam was the party insisting on a jury trial for the Related Action.

22.  Mr Ho’s explanations are unacceptable for the reasons below.

23.  Firstly, it was his deliberate decision (made with legal advisers) not to make an application on or before 25 February 2022. Despite the claimed motive of saving costs, Mr Lam was not informed and the Court’s indulgence was never sought before that date.

24.  Secondly, the GAP was irrelevant because it commenced only 10 days after expiry of the time for application. It was only on the day before termination of the GAP that Mr Ho indicated by letter to Mr Lam’s solicitors that he would make an application for jury trial after the GAP was lifted.

25.  Thirdly, Mr Ho used a wrong procedure. On 12 April 2022, his solicitors sent a letter to this Court, enclosing a purported summons for an order for trial by jury and supporting affirmation. He should have issued the Summons out of the Registry and was not entitled to choose his own judge, particularly since this case has never been docketed to a judge. He could have no explanation for the delay arising out of this wrong.

26.  Fourthly, one fails to see why Mr Ho needed to wait for the outcome of the Related Action. The parties in the Related Action have a reversed role - Mr Ho is the Plaintiff whilst Mr Lam is the 2^nd defendant; the other defendants are not parties to the present action. Whilst the 2 actions concern the same background (i.e. the Incident) and location (Yuen Long), they were different offending words used and on different dates. The focus of the Related Action is on the role of Mr Ho whereas the present action is that of Mr Lam. The fact that one action justifies a jury trial does not automatically mean that the other similarly justifies one.

27.  Considering all the circumstances, I find that Mr Ho’s delay in taking out the Summons was deliberate and for no good reasons.

28.  Although prejudice to Mr Lam does not exist in that a trial has not yet been fixed, I repeat §13 above.

29.  It is also obvious that Mr Ho cannot show any substantial change of circumstances to make the Unless Order inapplicable.

30.  The reasons given in this Section are sufficient to dismiss the Summons.

D.  Case Suitable for Trial by Jury?

31.  The principles for ordering trial by jury have been set out in the Related Action, at §§3-10. In essence, the right to a jury trial is not absolute. The modern trend is against jury trials in defamation cases. Factors militating against jury trial include the efficient administration of justice, prolonged examination of documents, inconvenience, additional trial length and additional costs, difficult and unsettled areas of law; the ability of a single judge to conduct the trial more efficiently; and avoidance of excessive jury awards.

32.  Mr Ho claims that there are similarities between this case and the Related Action in terms of parties (all being high profile political figures), facts (involving a historically significant social movement for Hong Kong) and law (scope of the justification issues). This is thus a case for trial by jury.

33.  Mr Lam draws to my attention that his actions covering the whole period of his journey to and stay in Yuen Long were captured by a live video taken by Mr Lam’s assistant, which will form the most important piece of evidence.

34.  This is a two-party case. The parties are high profile public figures at the time. Although Mr Ho has uttered the offending remarks out of the LegCo chambers, the involvement of the parties on the evening of 21 July 2019 may arguably involve a public function. There are matters of credibility (despite the video that Mr Lam relies on), honour and integrity of ex- and incumbent LegCo members but no issue of national interest is involved.

35.  On the other hand, the present case is less complex than the Related Action with fewer parties involved. The focus of the evidence is on the video that Mr Lam relies on and the Facebook video of Mr Ho, something that the media or the public is used to consider.

36.  Balancing all the factors, a jury trial is in principle suitable.

E.  Exercise of Discretion

37.  The Unless Order does not contain a sanction but Mr Ho has failed to give good reasons for extending time to take out the Summons or change of circumstances. Balancing all the factors, I decline to grant Mr Ho the orders sought given a deliberate decision not to comply with the Unless Order and failure to apply to Court as promptly as possible. I therefore dismiss the Summons.

38.  Costs should, on a nisi basis, be paid by Mr Ho to Mr Lam. The application is not complex and I grant certificate for only Mr Shum. Costs are summarily assessed and allowed at $150,000.

39.  I thank counsel for their assistance.