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DCCJ 3301/2020
DCCJ 1324/2021
[2023] HKDC 1194
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 3301 OF 2020 AND NO. 1324 OF 2021
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BETWEEN
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CHEUNG MOON HOI |
1st Plaintiff |
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JESSIE YUNG CERTIFIED PUBLIC ACCOUNTANT
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2nd Plaintiff |
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and
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HO CHI KUEN CHARLES |
Defendant |
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(Action Consolidated by order of Master Bryan Lung dated 29 July 2022)
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| Coram: |
Deputy District Judge David Chan in Chambers (Open to public) |
| Date of Hearing: |
25 August 2023 |
| Date of Decision: |
25 August 2023 |
| Date of Reasons for Decision: |
29 August 2023 |
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REASONS FOR DECISION
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INTRODUCTION
1. This is the 2nd plaintiff’s appeal against the decision of Master Ebony Ling (“Master Ling”) dated 30 June 2023, under which the 2nd plaintiff’s application to strike out §§3(a) to 3(d) of the consolidated defence filed herein on 23 August 2022 was dismissed.
2. By the order of Master Bryan Lung (“Master Lung”) dated 29 July 2022 (the “Order”), DCCJ 3301/2020 and DCCJ 1324/2021 respectively brought by the 1st plaintiff and the 2nd plaintiff against the same defendant, were consolidated pursuant to O.4, r.9 of the Rules of the District Court, Cap. 336H (“RDC”). Master Lung also gave the consequential directions that the parties were to file and serve their consolidated pleadings for the consolidated action. In compliance with these directions, the 1st and 2nd plaintiffs filed their respective consolidated statement of claim on 29 July 2022 (hereinafter referred to as “P1’s CSOC” and “P2’s CSOC” respectively), followed by the consolidated defence filed on 23 August 2022 (“Consolidated Defence”). The 1st and 2nd plaintiffs then filed their respective consolidated reply on 26 September 2022.
3. On 29 November 2022, the 2nd plaintiff filed a summons seeking to strike out §§3(a) to 3(d) of the Consolidated Defence, claiming that the defendant has amended his defence via these paragraphs (the “Striking Out Application”).
4. To have a better understanding of the 2nd plaintiff’s complaint, I shall in the sections below first reproduce the pleaded cases of the parties in the individual action before they were consolidated, followed by the pleaded cases of the 2nd plaintiff and the defendant in the consolidated action.
5. Before I do so, I shall add that in both DCCJ 3301/2020 and DCCJ 1324/2021, the defendant was ordered to give further and better particulars on the defences he had filed. He did so, as per the court’s directions, by way of affidavits. The answers given in these affidavits became part of his pleadings[1]. Hence, I will also include and consider them in the sections below.
DCCJ 3301/2020
6. In DCCJ 3301/2020, the 1st plaintiff sued the defendant for the sum of HK$331,600.00 in his Amended Statement of Claim filed on 9 September 2020 (“3301 ASOC”). The particulars provided therein are set out below:-
“PARTICULARS
2. The sum was deposited to the Defendant’s bank account held at Hend Hang Seng Bank for the period from July 2012 to May 2018.
3. Despite demands made from November 2018 to March 2020 by the [1st plaintiff] to the Defendant, the Defendant has wrongfully refused to pay the balance at all.
4. The Defendant provided wrong and false information to the [1st plaintiff] during the services periods. This is something that needed to be follow up on.”
7. In his defence filed on 20 October 2020 (“3301 Defence”), the defendant had these to say:-
“1. As there is an outstanding loan for the [1st plaintiff] to Mr. Leung Po Ming Adolf (and also named as Joe Leung), this amount deposited to the account of the Defendant is only for the settlement of the outstanding loan amount, and it was acknowledged by the [1st plaintiff] in June 2012.
2. The [1st plaintiff] was contacted by mobile and Whatsapp/Messaging application, and could not be reached to discuss the details.
3. There are no details about the claims by the [1st plaintiff], such as reasons and the evidence for the claim.”
8. By the order of Master Maurice Lam (“Master Lam”) dated 10 December 2020, the defendant was required to give further and better particulars of the 3301 Defence by way of affidavit. The defendant did so on 18 December 2020. In it, he stated:
“1. As Mr. Leung has passed away, please refer to this address for all correspondence of this case: House 44, 3rd Street, Section I, Fairview Park, Yuen Long. In addition, the Defendant is one of the lenders of the loan to the [1st plaintiff] (i.e., the Loan) and is also the guarantor of the [1st plaintiff’s] mortgage loan of Laguna City with Bank of East Asia, Ltd., and the flat Laguna City is the security of the Loan.
2. The signed Loan Agreement is attached.
3. The authorization authorizing the Defendant to receive the settlement of the alleged loan amount is by verbal agreement with Mr. Leung.
4. The acknowledgement by the [1st plaintiff] is attached.
5. The [1st plaintiff’s] agreement for the Defendant to receive the settlements of the alleged loan amount by way of depositing money into the Defendant’s Hang Seng Bank account, is the same as item 4, and is attached.
6. For the costs of the summons dated 10 December 2020, the cheque of HK$200 would be mailed to the [1st plaintiff] together with this document.”
9. The defendant filed another affidavit on 24 November 2021, in compliance with the same order of Master Lam. The answers given in this affidavit are the same as the one filed on 18 December 2020, but giving the documents attached to it their reference numbers.
DCCJ 1324/2021
10. On 26 March 2021, the 2nd plaintiff filed a specially indorsed Writ of Summons against the defendant for the sum of HK$100,000.00, under action number DCCJ 1324/2021. In the Statement of Claim (“1324 SOC”), the 2nd plaintiff pleaded:-
“PARTICULARS
2. The sum was deposited to the Defendant’s bank account held at Hang Seng Bank (account number: 280-8-401752) for the period from July 2012 to May 2018.
3. Interest charged at the best lending rate plus 3% from the date the money deposited into the Defendant’s Hang Seng Bank account (number: 280-8-401752) until settlement.
4. The Defendant provided wrong and false information during the said periods. This is something that needed to be follow up on.
5. Despite demands made from November 2018 to March 2020 by the [2nd plaintiff] to the Defendant, the Defendant has wrongfully refused to pay the balance at all.”
11. In the defence filed on 10 May 2021, the defendant was essentially seeking further and better particulars on 1324 SOC. This was followed by the 2nd plaintiff’s reply filed on 3 June 2021, giving no response to such defence, as the same contained no denials. On even day, the 2nd plaintiff also filed a summons seeking to strike out the said defence.
12. The striking out summons was heard before Master Lam on 23 June 2021. Master Lam ordered the defence filed on 10 May 2021 to stand as a request for further and better particulars of the 1324 SOC, and the 2nd plaintiff was to provide answers to these requests on or before 7 July 2021.
13. On 20 July 2021, the defendant filed a summons, repeating the same requests for further and better particulars of the 1324 SOC, with the exception that the 2nd plaintiff should, under §2 of the 1324 SOC, also provide particulars on when and how she obtained the defendant’s Hang Seng Bank account number.
14. Thereafter, the parties were engaged in a war of interlocutory applications. Numerous applications were taken out by both sides, i.e., requesting for further and better particulars on each other’s pleadings, asking for discovery of documents, to strike out the defence, and etcetera. Some of these were put to rest by Master Lung in the Order, when they were withdrawn[2].
15. Although the parties were busy making interlocutory applications, the defendant did file his defence on 18 August 2021 (“1324 Defence”). In it, the defendant pleaded:-
“1. The Defendant disagrees the claim. The Defendant has no business relation with the [2nd plaintiff] personally.
2. With reference to the deposit slips provided by the [2nd plaintiff] on 23rd June 2021 (as Attachment #1), the 1st deposit is dated June 2014. The [2nd plaintiff] has made false and mismatch information stated in Paragraph 2 of [1324 SOC].
3. The [2nd plaintiff] has not provided any details for the “wrong and false information during the said period” in Paragraph 4 of [1324 SOC], which the Defendant could not make any defense for this statement.
4. The Defendant has not received any demands made by the [2nd plaintiff] from November 2018 to March 2020.
5. The [2nd plaintiff] still has not provided any reasons why the [2nd plaintiff] made the claim and has not provided any reasons why the [2nd plaintiff] deposited 20 times to the Defendant’s bank account from Year 2014 to Year 2018.
6. The [2nd plaintiff] is the spouse of [1st plaintiff]. The Defendant knows [1st plaintiff] and the [2nd plaintiff] since we were studying in the Hong Kong Polytechnic in Year 198x, and [1st plaintiff] has borrowed money from Joe and the Defendant. The Defendant believes 20 deposits are the loan settlements of her husband, which is not related to the [2nd plaintiff] and her husband paid the loan settlement by the same way monthly since Year 2012. The [2nd plaintiff] has no ground to make the claim.”
16. After filing of the 1324 Defence, the defendant was on 28 December 2021 ordered by Master June Cheung[3] to provide further and better particulars of it by way of affidavit. In his affidavit filed on 10 January 2022, the defendant provided the following particulars:-
“3.1 Paragraph 1.a – “Joe” is the alias of “Leung Po Ming, Adolf”. The reply has been mailed to the [2nd plaintiff] dated 13 November 2021.
3.2 Paragraph 1.b – The death date of Joe is late March 2012, and the Defendant does not remember the exact date of death of Joe.
3.3 Paragraph 1.c – Joe’s address was at House 44, 3rd Street, Section I, Fairview Park, Yuen Long.
3.4 Paragraph 1.d – The Defendant believes whether Joe has been living with the Defendant at House 44, 3rd Street, Section I, Fairview Park, Yuen Long should not be relevant to this Court Case. The question of relevance has been asked in the Hearing dated 28 December 2021, and the Plaintiff has not answered.
4. Refer to paragraph 2.
4.1 Paragraph 2.a – The Defendant believes the Payments from the [2nd plaintiff] is related to the loan settlement from the [1st plaintiff] of DCCJ 3301/2020 and is the spouse of the [2nd plaintiff] of this 1324/2021.
4.2 Paragraph 2.b – The Defendant has not informed the [1st plaintiff] of DCCJ 3301/2020 the death of Joe, as the Hearing for DCCJ 3301/2020 dated 28th January 2021 has dismissed the same information requested by the [1st plaintiff] of DCCJ 3301/2020 in the Summons dated 6th January 2021.
5. Refer to Paragraph 3.
5.1 Paragraph 3.a – IN January 2012, Joe and I talked about the repayment of loans from the spouse of the [2nd plaintiff]. As the loan has been outstanding for too long, and the spouse of the [2nd plaintiff] requested the loan through me, Joe verbally asked me to receive and collect the outstanding loan amount.
5.2 Paragraph 3.b – The Defendant has not informed the [1st plaintiff] of DCCJ 3301/2020 the said authorization, as the Hearing for DCCJ 3301/2020 dated 28th January 2021 has dismissed the same information requested by the [1st plaintiff] of DCCJ 3301/2020 in the Summons dated 6th January 2021.”
17. There was another affidavit filed by the defendant on 28 January 2022, which was made upon the 2nd plaintiff’s reminder that he had missed answering some requisitions in his previous affidavit. For these requisitions, the defendant gave the following answers:-
“3. Paragraph 1.a, “Item 1d, Since when had Joe been living with the Defendant at House 44, 3rd Street, Section I, Fairview Park, Yuen Long, N.T.?” – Joe has been lived with the Defendant at House 44, 3rd Street, Section I, Fairview Park, Yuen Long, by late Year 2009, however, the Defendant does not remember the exact date.
4. Paragraph 1.b, “Item 3a, When, where, how and under what circumstance Joe had an oral agreement with the Defendant authorized the Defendant to receive the settlement of the alleged loan amount.” – In January 2012, Joe and I talked about the repayment of loans from the spouse of the [2nd plaintiff] in a hospital, as the loan has been outstanding for too long and the spouse of the [2nd plaintiff] requested the loan through the Defendant and the Defendant is also one of the lenders of the loans to the spouse of the [2nd plaintiff], and Joe verbally asked me to receive and collect the outstanding loan amount.
5. Paragraph 4.a, “Items, 2b, Has the Defendant informed the [1st plaintiff] of DCCJ 3301/2020 the death of Joe” – the Defendant has already replied in Paragraph 4.2 in “文件1” in Affidavit from the Defendant dated 10 January 2022, “Paragraph 2.b – The Defendant has not informed the [1st plaintiff] of DCCJ 3301/2020 the death of Joe, as the Hearing for DCCJ 3301/2020 dated 28th January 2021 has dismissed the same information requested by the [1st plaintiff] of DCCJ 3301/2020 in the Summons dated 6th January 2021”.
6. Paragraph 4.b, “Item 3b, Has the Defendant informed the [1st plaintiff] of DCCJ 3301/2020 the said alleged authorization” – the Defendant has already replied in Paragraph 5.2 in “文件1” in Affidavit from the Defendant dated 10 January 2022, “Paragraph 3.b - The Defendant has not informed the [1st plaintiff] of DCCJ 3301/2020 the said authorization, as the Hearing for DCCJ 3301/2020 dated 28th January 2021 has dismissed the same information requested by the [1st plaintiff] of DCCJ 3301/2020 in the Summons dated 6th January 2021”.”
18. Pursuant to the order of Master Lung dated 17 June 2022, the defendant filed further affidavit on 28 June 2022, giving further and better particulars of the 1324 Defence. This affidavit contained more particulars then the previous 2 affidavits filed under this action, but none of those particulars are included in the Consolidated Defence.
The consolidated action
19. Despite filing their separate statement of claim in the consolidated action on 29 July 2021, P1’s CSOC and P2’s CSOC shared the same contents:-
“1. The Plaintiffs’ claim against the Defendant is for the sum of HK$331,660.00[4] plus interests.
PARTICULARS
2. The sum was deposited to the Defendant’s bank account held at Hang Seng Bank (account number: 280-8-401752) for the period from July 2012 to May 2018.
3. Interest charged at the best lending rate plus 3% from the date the money deposited into the Defendant’s Hang Seng Bank account (number: 280-8-401752) until settlement.
4. The Defendant provided wrong and false information during the said periods. This is something that needed to be follow up on.
5. Despite demands made from November 2018 to March 2020 by the Plaintiffs to the Defendant, the Defendant has wrongfully refused to pay the balance at all.”
20. One can see from the above that the facts pleaded in P1’s CSOC and P2’s CSOC resembled those pleaded in 1324 SOC with only some minor adaptations.
21. Turning to the Consolidated Defence, its contents are reproduced below:-
“1. Referring to [P1’s CSOC and P2’s CSOC], the Defendant denies the claim of the 1st Plaintiff and the 2nd Plaintiff:
(a) the total sum of deposit amount of HK$331,600;
(b) all related interests; and
(c) all related costs
and denies the 1st Plaintiff’s and the 2nd Plaintiff’s accusation of providing false and wrong information by the Defendant.
2. The Defendant still has not received the details of the amount deposited, and the false and wrong information from the 1st Plaintiff and the 2nd Plaintiff.
3. It is the Defendant’s case that:
(a) The 1st Plaintiff had borrowed large sums of money, and more than once from the Defendant and Mr. Leung since Year 200x;
(b) The 1st Plaintiff told the Defendant that the 1st Plaintiff borrowed the money for the alleged reasons of loss in investment(s) and court cases(s);
(c) The 1st Plaintiff has signed a “Receipt for a Loan (借據) ” together with a copy of the 1st Plaintiff’s Hong Kong Identity Card as an evidence for the loan the 1st Plaintiff has borrowed;
(d) The 1st Plaintiff and the 2nd Plaintiff[5] (the spouse of the 1st Plaintiff) deposited the money to the Defendant’s bank account is for the settlement of the outstanding amount of loan amount from the 1st Plaintiff, and the 1st Plaintiff has agreed this way of loan settlements by the email from the 1st Plaintiff;
(e) The Defendant has requested the 1st Plaintiff to reply for the outstanding loan amount from the 1st Plaintiff, and there is still no outstanding loan amount replied from the 1st Plaintiff;
(f) The Defendant did not know some loan settlements were deposited by the 2nd Plaintiff until the 1st Plaintiff requested to add the 2nd Plaintiff to his court case DCCJ 3301/2020.”
22. I have, in the preceding paragraph, underlined the facts and matters that were not pleaded in the 3301 Defence, the 1324 Defence, and the affidavits filed by the defendant giving further and better particulars of the 3301 Defence and the 1324 Defence.
23. Having set out contents of the pleadings, I will now consider the appeal before me.
THE APPEAL
24. In both this appeal hearing and the hearing before Master Ling, the 2nd plaintiff and the defendant attended in person. Despite so, I see that all pleadings, letters, affidavits and affirmations, filed by the parties, were written in English. This Reasons for Decision is thus also written in English.
25. The 2nd plaintiff had filed 2 affirmations on 29 November 2022 and 22 February 2023 in support of the Striking Out Application. The defendant filed his affidavit in opposition on 26 January 2023. For this appeal, the 2nd plaintiff filed an affirmation on 10 July 2023. In it, she expressly adopted her 2 affirmations filed for the Striking Out Application. The defendant also filed an affidavit on 3 August 2023, saying that he agrees with the decision of Master Ling, and urging the court to dismiss the appeal.
26. After hearing the submissions from the 2nd plaintiff and the defendant, I have ordered that the appeal is allowed, and the order of Master Ling dated 30 June 2023 be set aside. I told the parties that written reasons for my decision will be handed down, and this I now do.
Relevant legal principles
27. An appeal from a master to a judge under O.58, r.1(1) of the RDC is by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time, save that the party appealing, even though the original application was not by him but against him, has the right as well as obligation to open the appeal[6].
28. As to the pleadings to be filed after an order for consolidation was made, the court would usually include a specific direction that “the consolidated pleadings should not plead or raise facts or matters which have not been previously pleaded or raised”. I see that such direction was not given in the Order.
29. However, even in the absence of the said specific direction, the parties are not at liberty to do so. This was made clear by DHCJ K. Yeung SC (as K. Yeung J then was) in the case of Yong Li Investments Limited v Lee Sing Leung Robin[7], where he said:-
“21. That leaves one further relevant legal issue to consider. Once the filing of consolidated pleadings has been ordered, and in the absence of any specific order prohibiting that, can the parties avail themselves of the situation and plead in the consolidated pleadings facts which have not previously been pleaded, thereby raising new issues and allegations not previously raised? During the hearing, Ms Law and Mr Ng informed me that despite their research, they had not been able to find any authority which was directly on point.
22. In my view, the answer should not be controversial. Consolidation is a matter of convenience and economy in case management. It cannot operate to change the parties’ substantive rights. By the same token, it does not give carte blanche to the parties to change their cases or amend their pleadings in ways which they would otherwise need express leave. That runs contrary to the purpose of making an order for formal consolidation, which is to save time and costs. Further, an analogy can be made with the case of a party effecting amendments to pleadings consequential upon amendments which the other side has made. As explained in paragraph 20/4/8 of Hong Kong Civil Procedure 2018:
“Where the plaintiff is given leave to amend his statement of claim, the defendant is not entitled, in the absence of express leave to do so, to introduce any amendments that he chooses, but his implied right to amend his defence is limited to making only such amendments as are consequential upon the amendments made in the statement of claim, i.e. it extends to amending only those parts of the defence which relate to the amended allegations made in the statement of claim and does not extend to the parts which relate to allegations in the statement of claim not affected by the amendments made therein ….”
23. Even in the absence of any authority, I am prepared to hold that upon an order for formal consolidation, and upon consequential case management directions on filing of consolidated pleadings, the parties are not at liberty to change their pleadings (whether through addition or deletion) in any way which they otherwise would need leave for. Their implied right is to effect consolidation, but not to make substantive changes. Some presentational variations may be inevitable. But there can be no substantive changes the effecting of which the parties otherwise would require leave for.” (emphasis added)
30. I respectfully adopt the same approach in dealing with the Striking Out Application and this appeal.
Discussions
31. As I have already highlighted in §§21 and 22 of this Reasons for Decision, there are parts in §3 of the Consolidated Defence where facts and particulars not pleaded in 3301 Defence, 1324 Defence, and the affidavits filed by the defendant giving further and better particulars of the 3301 Defence and the 1324 Defence, are added. In light of the legal principles set out above, this is not allowed. These variations are in no way presentational. He had given more details of the alleged loan, document which evidenced the loan, and the purpose of the 1st plaintiff in taking out the loan. If the defendant had wanted to include these facts in the 3301 Defence and 1324 Defence, he would have to apply for leave from the court to do so by way of amendment. Such purpose should not be achieved by filing his Consolidated Defence. I shall add that there is no substantive change of the 1st and 2nd plaintiffs’ cases in P1’s CSOC and P2’s CSOC which warranted the defendant making corresponding substantive changes in his Consolidated Defence.
32. In his affidavit, the defendant pointed to the Order containing no prohibition for him to amend or to add facts to the Consolidated Defence. In light of the ruling in the Yong Li case, this is not a valid argument.
CONCLUSION
33. For the reasons above, I will allow the appeal and set aside the order of Master Ling dated 30 June 2023. I will order that parts of §§3(a) to 3(d) of the Consolidated Defence which contained addition facts and matters that were not previously pleaded be struck out. Although the Striking Out Application was limited to §§3(a) to 3(d), but the substantive amendments made by the defendant in the Consolidated Defence clearly extended to §§3(e) and 3(f) as well. To tie up such loose ends, and to avoid having another application being taken out for this purpose, I will on the court’s own motion order that they should be struck out from the Consolidated Defence. The relevant paragraphs shall be varied as follows:-
“3. It is the Defendant’s case that:
(a) The 1st Plaintiff had borrowed large sums of money, and more than once from the Defendant and Mr. Leung since Year 200x;
(b) The 1st Plaintiff told the Defendant that the 1st Plaintiff borrowed the money for the alleged reasons of loss in investment(s) and court cases(s);
(c) The 1st Plaintiff has signed a “Receipt for a Loan (借據)” together with a copy of the 1st Plaintiff’s Hong Kong Identity Card as an evidence for the loan the 1st Plaintiff has borrowed;
(d) The 1st Plaintiff and the 2nd Plaintiff (the spouse of the 1st Plaintiff) deposited the money to the Defendant’s bank account is for the settlement of the outstanding amount of loan amount from the 1st Plaintiff, and the 1st Plaintiff has agreed this way of loan settlements by the email from the 1st Plaintiff;
(e) The Defendant has requested the 1st Plaintiff to reply for the outstanding loan amount from the 1st Plaintiff, and there is still no outstanding loan amount replied from the 1st Plaintiff;
(f) The Defendant did not know some loan settlements were deposited by the 2nd Plaintiff until the 1st Plaintiff requested to add the 2nd Plaintiff to his court case DCCJ 3301/2020.”
34. The defendant shall file and serve a fresh Consolidated Defence with these parts of §3 be deleted, and he shall do so within 28 days upon receiving this Reasons for Decision; the Consolidated Defence previously filed shall be expunged and replaced by the fresh Consolidated Defence.
35. Notwithstanding the order that I have made in this above, the defendant is at liberty to apply for leave to amend the Consolidated Defence to include the facts and particulars that he wishes to plead therein[8]. He should do so properly by way of summons with the draft amended Consolidated Defence attached thereto.
36. Costs should follow the event. As the 2nd plaintiff is successful in this appeal, she should have costs of the Striking Out Application, costs of the hearing before Master Ling, and costs of this appeal. Her costs should be assessed pursuant to O.62, r.28A of the RDC. After hearing the parties’ submissions, and considering the papers before me, the 2nd plaintiff’s costs are summarily assessed at HK$750, and should be paid by the defendant forthwith.
POST SCRIPT
37. I had, during the appeal hearing, shared with the 2nd plaintiff and the defendant my observations on the state of the parties’ consolidated pleadings; they are short on particulars. I had also taken the opportunity to impress upon them the importance of pleadings, how the parties’ cases would be bound by them at the trial, and the particulars left out from the pleadings may not be salvageable by way of documentary and verbal evidence. If the parties were minded to include these material facts and particulars to their pleadings, they have to do so properly by way of summons (with draft amended pleading attached) and as soon as possible. Hopefully, what I have shared with them at the appeal hearing could right the parties’ previous wrongs in the preparation of their pleadings, and most importantly, could avoid them having to resume their requests for further and better particulars on the pleadings filed in this consolidated action. I will end this post script with passages from 2 Court of Final Appeal cases which I had mentioned to them at the appeal hearing.
38. In Kwok Chin Wing v 21 Holdings Ltd,[9] Ma CJ explained on the importance of pleadings:-
“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-
“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.” (emphasis added)
39. In another Court of Final Appeal judgment[10], Ribeiro PJ reminded litigants on the need to raise all issues in their pleadings:-
“30. The fact that the plaintiff was unprepared to argue an essential aspect of its unpleaded alternative indicates just how unacceptable it was to allow this purported alternative to be run. A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken. Notions like “the entire quantity of the mud dredged from the CT9 project” might be studded with arguable questions as to how such quantity should be ascertained dependent on the evidence. If there was room for exceptions regarding bad weather or anything else, the scope and effect of such exceptions could no doubt throw up factual and legal questions.
31. Where a late attempt is made to introduce a new case, it is doubly important that the other side should have a clearly pleaded draft amendment so that proper consideration can be given as to whether objections should properly be made to such amendment and whether an adjournment should be sought.
……
34. Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.” (emphasis added)
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( David Chan ) |
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Deputy District Judge |
The 2nd plaintiff appeared in person
The defendant appeared in person
[1] See Hong Kong Civil Procedure 2023, Vol. 1, §18/12/71, at p. 530: “If the particulars are not contained in the pleading, but are served separately, either under request or order, they become part of the pleadings……”.
[2] At §8 of the Order.
[3] It was wrongly stated as Master B. Mak on the order.
[4] Recorded under §6 of the Order is the 1st and 2nd plaintiff’s confirmation that the total amount claimed by them will be HK$331,600.00.
[5] At the appeal hearing, the 2nd plaintiff pointed to this not previously pleaded by the defendant. However, upon further review of the defendant’s affidavit filed on 10 January 2022, at §4.1, he did refer to his believe that the deposits from the 2nd plaintiff was for the repayment of the 1st plaintiff’s loan. See §16 of this Reasons for Decision.
[6] Hong Kong Civil Procedure 2023, Vol 1, §58/1/2, at p.1214
[7] [2018] HKCFI 1711.
[8] Including but not limited to the further and better particulars that the defendant had given for the 3301 Defence and 1324 Defence.
[9] (2013) 16 HKCFAR 663
[10] Sinoearn International Limited v Hyundai-CCECC Joint Venture (a firm) (2013) 16 HKCFAR 632
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