XCHRX DR PAUL KI PING KI AND ANOTHER v. SECRETARY FOR JUSTICE

HCA 10/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10 OF 2000

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J U D G M E N T

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1. This is the Plaintiffs' appeal against the order of Master Barnes dated 6 March 2000 when she struck out the Statement of Claim herein and dismissed this action.

2. The Writ of Summons therein was issued on 1 January 2000. In essence 2 claims are made against the Defendant:-

(a) defamation by way of a letter dated 9 February, 1993 from the Department of Health which was published in an issue of the "Next" magazine dated 28 May 1993;

(b) despite the drug "Retrogen" (which was invented by the Plaintiffs) having been proven and authorized by the Chinese Government to be a safe drug, the Department of Health (represented in this action by the Defendant) has wrongfully refused to register the drug.

3. In relation to the claim set out in point (a) above, the Defendant supports the learned Master's order and argues that:-

(1) this action is time-barred pursuant to s. 4(1)(a) of the Limitation Ordinance, Cap. 347;

(2) issues identical or similar to those litigated in HCA 12669 of 1995 and HCA 8071 of 1994 are raised herein.

4. The Plaintiffs' answers to those arguments are as follows. First, it took a long time for the earlier actions to come to an end. Secondly, the Judges in the earlier actions were incompetent and did not understand Chinese properly. Thirdly, the Plaintiff was deprived of trials by juries in those actions. Fourthly, the Plaintiff is claiming for financial loss in the present action, and therefore it is different from the earlier actions. Save as aforesaid, the Plaintiffs do not dispute that the claims herein are identical or similar to those raised in the said 2 actions. Having perused the court documents, I do not find this can be disputed.

5. With respect, I do not consider that any of the Plaintiff's answers to be valid. On the contrary, I entirely agree with the Defendant's arguments set out above.

6. In relation to the claim set out in point (b) above, the Defendant also supports the Master's order and argues that:-

(1) it is a claim in public law and should have been brought by way of judicial review;

(2) in any event, the matter was identical or similar to that advanced in HCA 12669 of 1995 and was dealt with in Registrar Betts' Order therein dated 18 July 1996 when he struck out that part of the Plaintiff's claim.

7. The Plaintiffs did not advance other arguments in answer. Similar to the conclusion reached in relation to point (a) above, I also do not consider any of their earlier answers to be valid in relation to point (b) above. I also agree with the Defendant's arguments set out above.

8. For the above reasons, I agree with the Master's order and dismiss this appeal.

9. There will be a costs order nisi pursuant to R.S.C. Ord. 42 r. 5B(6) that the costs of this appeal are to be paid by the Plaintiffs to the Defendant to be taxed if not agreed.