TSUI KOON WAH v. DIRECTOR OF SOCIAL WELFARE

HCA 2938/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2938 OF 2003

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J U D G M E N T

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1.  This is the plaintiff’s appeal against the decision of the Listing Master made on 21 December 2005.  By the decision, the Master refused to vary an earlier order made by consent directing that this action be tried after the trial of another related action and by the same judge, and awarded costs against the plaintiff.

2.  By this appeal, the plaintiff seeks leave to set down the action for a 5-day trial in the Fixture List before a bilingual judge, and for an order for speedy trial.  The plaintiff also seeks to set aside the costs order and asks for a costs order in his favour.

Background

3.  In dealing with the appeal, it is necessary to mention the brief background of this action.

4.   The plaintiff was previously employed as a contract social security assistant at the Mongkok Field Unit of the Social Welfare Department (“SWD”).  Before his contract expired, he was summarily dismissed on 3 January 2003.

5.  In connection with his dismissal, the plaintiff had brought several pieces of litigation.  For the present purpose, it is sufficient to mention two sets of litigation.

6.  The first is a claim he brought in the Labour Tribunal under Claim no. 2955 of 2003 against the Director of Social Welfare (“the Director”) for payment in lieu of notice and for the leave accrued.  The claim was ordered to be transferred to the Court of First Instance and became the present action.

7.  The second is High Court Action no. 890 of 2003 brought by the plaintiff against four officers of SWD for damages in defamation (“the defamation case”). 

8.  At the adjourned checklist hearing of the present action on 8 December 2004, the plaintiff and the Director agreed that the trial of this action should take place after the trial of the defamation case and be heard by the same judge.  Accordingly, the checklist hearing was adjourned sine die with liberty to restore, and by consent it was ordered that this action be tried after the defamation case and by the same judge (“the 8-12-2004 Order”).

9.  The defamation action was originally scheduled for a 5-day trial before Chung J together with a jury to commence on 3 January 2005.  The pre-trial review was scheduled for 30 November 2004.

10.  However, by summons filed on 25 October 2004, the plaintiff applied to amend his pleadings.  On 30 November 2004, Chung J adjourned the pre-trial review and vacated the trial dates fixed.  Thereafter, the plaintiff applied by summons filed on 29 December 2004 to further amend the title of the action.  The decision on the two summonses were handed down on 29 January 2005. The plaintiff failed substantially in the applications.

11.  There were then two applications by the defendants to strike out the Re-Re-Amended Statement of Claim.  The first application resulted in the striking out of a considerable part of the pleadings: see Chung J’s decision dated 5 September 2005.  The second application had been heard and the decision is pending.

12.  In the course of 2005, the plaintiff had also made several applications to further amend his pleadings. 

The present application to vary the 8-12- 2004 Order

13.  On 26 September 2005, the plaintiff restored the present action for hearing.  At the hearing on 21 December 2005, the plaintiff applied to vary the 8-12-2004 Order to provide for leave to set the action down for trial.  The Listing Master refused his application with costs.  It is against this order that he now seeks to appeal.

The plaintiff ‘s reasons for the application

14.  In summary, the plaintiff says that the 8-12-2004 Order is wrong, has caused him injustice and has become unrealistic due to change in circumstances. Specifically, he relies on the following grounds:

(1)	The plaintiff says he suffers irreparable damage caused by loss of witnesses.  It is said that of the witnesses he intended to subpoena for this action, some had left the service of SWD or had left Hong Kong while one major witness was due to retire in September.  He will not be able to contact these witnesses after they left the service.
(2)	The defendants in the defamation case had obstructed his attempts to re-fix the trial date and further acted to delay the trial by applications to strike out. It is not known when the defamation case will be tried.
(3)	The defendants in the defamation case are defended by the Department of Justice.  They acted together with the Director to delay the defamation case so as to benefit the Director.
(4)	The plaintiff has been unemployed since the dismissal and is relying on public assistance.
(5)	The Director had made a payment into court in this action.  If the defamation case were tried first, the plaintiff would in cross-examination refer to the Director’s payment into court.  In this way, the trial judge of this case (who also presides over the defamation case) would be made aware of the payment in.

Delay in the defamation case

15.  An important thesis in the plaintiff’s argument is that there has been delay in the defamation case, and the Director had worked together with the defendants of the defamation case to delay the trial of the defamation case. 

16.  There is no doubt that the trial of the defamation had been de-railed and new trial dates have not been fixed.  However, the blame can hardly be laid at the door of the defendants in that case, let alone the Director. It is clear from the decision of Chung J handed down on 29 January 2005 (at paras.45-48) that the adjournment of the pre-trial review and the trial in the defamation case was not due to any act on the defendants’ part.  On the contrary, given the plaintiff’s late applications to amend the pleadings, being made so close to the pre-trial review and trial dates, it was readily foreseeable that the dates might be vacated.  The plaintiff seems to suggest that had the defendants not opposed the amendments, the trial could have proceeded.  The plaintiff had no legitimate basis for expecting no opposition to his late attempts to amend, and the defendants are entitled not to consent.  As events unfolded, their opposition was justified and had been upheld by the court. Chung J also pointed out in his decision that the case was not ready for trial and further expressed concern over the state of the plaintiff’s pleadings.

17.  It is correct that the defendants had made striking out applications, but they cannot be regarded as frivolous or attempts to delay the case.  Insofar as the first application is concerned, it had resulted in a considerable part of the Re-Re-Amended Statement of Claim being struck out.  Among other things, this has the direct benefit of clarifying the issues to be tried and streamlining the case for easy understanding by the jury.

18.  Plainly, the pleadings in the defamation have yet to be finalized.  To say the least, the outcome of the second striking out application is pending.  Further, admittedly in the course of 2005, the plaintiff had made several applications to further amend his pleadings. The plaintiff argued that while there was room for improvement in his pleadings, trial dates could be fixed leaving issues on the pleadings to be resolved at the trial.  I cannot agree.  This is not a proper and responsible approach to litigation.  The courts had repeatedly emphasised the importance of proper pleadings in the civil justice system: see for instance the judgment of the Court of Appeal in ADS v. Wheelock Marden & Co Ltd & Others [2004] 2HKC 264,270 and the decision of Chung J handed down on 5 September 2005 at para.11.  The approach suggested by the plaintiff will only lead to the trial being de-railed again, hence further delay and wastage of costs and judicial resources.    

19.  Apart from pleadings, Chung J had in his decision dated 29 January 2005 also raised concerns over the ten odd witness subpoenas issued by the plaintiff and the voluminous documentary evidence he proposed to adduce at trial.  The plaintiff argues that the witnesses had to be called because they had been referred to in the defence witness statements. The plaintiff further contends that, depending on the witnesses’ answers in examination-in-chief, it may not be necessary to refer them to the documents in the trial bundle.  This completely misses the point.  These proposed witnesses had not made any witness statements.  The nature and scope as well as the relevance of their evidence remain unclear.  Even the plaintiff himself cannot say with any confidence as to what these witnesses will say in evidence.  This being the case, and considering that the plaintiff and the defendants are giving evidence, the 5-day estimate is wholly unrealistic.  This is a matter that the plaintiff has to seriously consider and address before the case can be allowed to go before a jury. 

20.  In the recent decision in Mandecly Ltd v. Hao Wei & Others [2005] HKLRD 592, the Chief Judge stressed that proper estimation of the length of trial is essential and must be taken seriously.  His Lordship further pointed out that (at para.8(1)):

“The fixing of dates requires a proper examination not only of the live issues at trial but also of the time needed to deal with witnesses.  It therefore goes without saying that all parties must be able to identify the relevant witnesses who will give evidence at trial and make an assessment as to how much time will be required to deal with their testimony.”

21.  Proper estimation of the length of trial is all the more important for trials before juries given that in performing their civic duties to sit as jurors, the jurors are sacrificing their personal time.  They should not be unduly burdened by inaccurate and unrealistic estimation, which is bound to cause disruptions to their daily lives.

22.  The plaintiff complains that the defendants in the defamation had opposed his attempts to re-fix the trial dates.  In light of the above considerations, the defamation case is simply not ready to be re-listed for trial.  The defendants’ disagreement to fix the new trial dates is no way improper.  Still less can it be said that the defendants, at the instigation of the Director or the Department of Justice, are responsible for causing delay in the progress of the case.

23.  If the plaintiff proceeds to address the issues of pleadings and witnesses and evidence properly, then the defamation case will be re-listed for trial in the normal course.

Damage and prejudice to the plaintiff

24.  I turn next to the plaintiff’s complaint of loss of witnesses.  In his submissions, the 8-12-2004 Order has caused him irreparable damage as he is losing his witnesses day by day.

25.  In the present case, the plaintiff had only served his own witness statements.  However, he indicated in his Checklist that he had 20 to 22 witnesses.  He confirmed at the hearing of this appeal that at the moment he would have no less than 15 witnesses to subpoena.  According to him, these are mainly officers or staff working at the SWD.  The plaintiff says he had requested the Director for their contact addresses.  For those working at the SWD, the Director had provided him with their office addresses.  The plaintiff says that once these people leave their service with the SWD, he will lose contact with them.  Hence he is losing his witnesses as time goes by. He is therefore anxious to fix the trial date of this action so that he may issue and serve subpoenas on them. 

26.  It should be pointed out at the outset that the burden is on the plaintiff to ensure that his witnesses are available for trial.  The Director has no obligation to assist him or to make witnesses available to him.  In any event, I am of the view that the plaintiff’s contention that he will suffer irreparable damage through loss of witness if the case is not now set down for trial is misconceived.

27.  Firstly, none of these witnesses has given a witness statement.  The nature and precise scope of their evidence, hence its relevance, remains to be established. 

28.  Secondly, under Order 38 rule 2A(10) of Rules of the High Court, where a party fails to comply with the direction for the exchange of witness statements, he shall not be entitled to adduce evidence without the leave of the Court.  In the present case, the direction for exchange of witness statements was made as early as 5 December 2003.  Given his failure to serve signed statements of these intended witnesses, the plaintiff cannot adduce evidence from them unless the court has granted leave. The issue of witness subpoenas is no assurance that the plaintiff will be allowed to call these witnesses at the trial of this action.  The court will only give leave to adduce evidence from witnesses who had not given statements as directed if the party can show good reasons for not serving witness statements in compliance with the direction for exchange of witness statements: see Hong Kong Civil Procedure 2006 vol.1 para.38/2A/15.  

29.  Further, Order 38 rule 2A(5) provides that where a party is unable to obtain a written statement from an intended witness, the Court may direct the party wishing to adduce that witness's evidence to provide the other party with the name of the witness and (unless the Court otherwise orders) a statement of the nature of the evidence intended to be adduced.  This reinforces the point that the plaintiff cannot expect to be entitled as of right to adduce evidence from witnesses whom he has subpoenaed.   He must at least demonstrate that he is unable to obtain signed written statements from his intended witnesses.  This entails him making efforts to approach his intended witnesses to request for witness statements.

30.  The plaintiff wrote in after the hearing to advance further arguments on the point.  In this regard, it must be pointed out that this is not a proper course.  It is not open to a litigant, even if acting in person, to raise further arguments after the hearing had concluded and the court had retired to consider the decision.  What the plaintiff sought to argue in his letter is that he anticipated the witnesses would not give a statement except under subpoena.  This however is against the thrust of his submissions at the appeal.

31.  In his oral submissions, the plaintiff accepted he had never approached his intended witnesses to request for witness statements.  All that he had done was to write to the Director asking for the witnesses’ contact addresses.  His initial explanation was that these people were staff of the SWD. However, this is irrelevant to his duty to obtain witness statements from these intended witnesses.  The plaintiff next explained that he had written to the Director asking him to release these witnesses from obligations of confidentiality and data privacy restrictions, but met with no positive reply.  He considered that by issuing subpoenas to the witnesses, they could be compelled to answer questions irrespective of their legal and professional obligations of confidentiality and the protection of privacy imposed by statute.  Again, this does not explain why he should not and did not approach the intended witnesses to give statements.

32.  If the plaintiff has made no attempt to obtain signed statements from his witnesses and has no good reasons for the failure to comply with the direction for exchange of witness statements, he cannot expect with confidence that the court will grant him leave to adduce evidence from the witnesses subpoenaed by him. 

33.  Thirdly, it is the plaintiff’s case that his intended witnesses had acted together with the defendants of the defamation case to cause his dismissal.  Prima facie, the plaintiff has no reason to think that these witnesses will testify in support of his claim.  This calls into doubt the plaintiff’s real purpose in issuing subpoenas to these witnesses.  Indeed, the plaintiff contended in his letter that it was open to him to cross-examine his witnesses, relying on sections 12 and 14 of the Evidence Ordinance, cap. 8 and Part L of Hong Kong Civil Procedure 2006.  It appears that the plaintiff is not calling these witnesses to support his claim, but rather to cross-examine them and probably with a view to impeaching their credit. Quite apart from whether this is a legitimate purpose, it is trite that the plaintiff has to demonstrate that the witness is adverse or hostile at trial before he will be permitted to cross-examine his own witness.  Given the plaintiff’s case about these witnesses and in the absence of witness statements, it is highly doubtful that the plaintiff can avail himself of the provisions in the Evidence Ordinance or the common law rule of hostile witness.

34.  In order that the complaint of irreparable damage caused by loss of witnesses can be sustained, the plaintiff must at least show that the witnesses already or might be lost are relevant and that, if he could contact them, he would be in a position to adduce evidence from them at trial.  For the matters stated above, the plaintiff does not come anywhere near the thresholds.  Moreover, it is not a case that the plaintiff can say that unavailability of any of the witnesses will deprive him of a fair trial.     

The plaintiff’s unemployment

35.  The plaintiff says he has since his dismissal remained unemployed and that he is currently on social welfare assistance.  He contends that deferring the trial of this action is causing him hardship.  There is plainly no necessary connection between his unemployment and the final resolution of the case.  There is also no evidence to show the causal relationship.  When asked to elaborate on this argument, the plaintiff conceded that he could not say that his unemployment was because the determination of the present action was pending.  What he tried to suggest is that he would stand a better chance of finding employment if this action were ultimately determined in his favour.  This is however entirely speculative.

The Director’s payment into court

36.  The plaintiff submitted in his written submission that the defamation case and this action should be tried by two different judges because the trial judge of the defamation case would be made aware that the Director had made payment into court in this action.  This is because he intends to cross-examine the witnesses in the defamation case about the payment in.  He however has not explained the reason for the proposed line of cross-examination or the relevance of the payment in the issues in the defamation case.   

37.  Assuming that it were relevant and the reference to the payment in were allowed at the trial of the defamation, one would have thought that the prejudice or disadvantage is more on the Director than on the plaintiff.  The plaintiff does not seem to dispute this.  Hence, in his reply, he retracted from his initial position and said he raised the point  merely because he was concerned that the Director might subsequently apply to have the trial of this action before another judge.

38.  However, the payment into court was made before the 8-12-2004 Order.  The position now is no different from what it was when the parties agreed to have the two actions tried together.  If there was a risk of the judge being made aware of the payment in, the risk has always been there.  The mere possibility of disclosing to the judge the payment into court, without more, does not justify a variation of the direction for trial.

The 8-12-2004 Order

39.  The plaintiff has therefore failed to show good grounds for varying the directions for trial contained in the 8-12-2004 Order made by consent.  I would additionally observe there are practical advantages for maintaining the Order.

40.  The two actions arose out of the same incident, namely, the summary dismissal of the plaintiff.  In the defamation case, the defendants were the plaintiff’s colleagues, supervisor and countersigning supervisor.  The plaintiff’s claim against them was based on statements contained in performance appraisal report, reports and complaint memo they compiled and also a notice of intended dismissal.  The statements are related to the plaintiff’s employment and his conduct while at work.  The defendants deny the defamatory meaning pleaded and rely on justification and qualified privilege as defence: see Chung J’s Decision handed down on 5 September 2005 at paras.4, 12 and 13.  In the present action, the critical issues are the plaintiff’s conduct during his employment at the SWD and whether the decision to summarily dismiss him without payment in lieu of notice and of accrued leave is justified.

41.  It can be readily appreciated that not only are the facts substantially the same, but also there is substantial overlapping of issues.  Among other matters, both actions involve investigations into the plaintiff’s conduct at work and the veracity of the complaints made against him.  The disputes in the defamation case however have a wider compass than those in this action.  As the parties accepted at the time the 8-12-2004 Order was made, the outcome of the defamation case will have an impact on the disposal of the present action in that the parties will have a more realistic assessment of their respective prospect of success in this action.  There is thus a logical reason and useful purpose for having the trial of the defamation case before the trial of this action.  

42.  Further, as accepted by the plaintiff, the witnesses and documents also overlap substantially, if not almost identical.  In the normal course, it would have been appropriate for the two actions to be tried together or one after another immediately.  This is rendered not viable by the plaintiff’s election to have the defamation case tried before a jury.  The plaintiff believed a jury trial would enhance his prospect of success in the defamation case, he is therefore insistent on having a jury trial. 

43.  It is the plaintiff’s right to have a jury trial.  At the same time, it is the court’s duty to ensure that litigations are properly managed so as to ensure their fair, expeditious and effective disposal.  In terms of case management, there is bound to be considerable saving of time and resources by having the same judge presiding over the trials of the defamation case and this action.  In fact, the plaintiff has not pointed to any reason for having different judges, other than the payment into court point discussed above.

44.  It is further to be observed that, contrary to the plaintiff’s belief, the present action is not ready for setting down.  As noted above, the position of the witnesses, hence the evidence, to be adduced by the plaintiff at trial remains to be elucidated.  The Director and the court cannot be kept in suspension and left to second-guess what the evidence will be at trial.  The position of the witnesses is also critical to an accurate and realistic estimation of the length of the trial.  The plaintiff claims that the trial should require no more than five days.  This is wholly unrealistic if indeed some 15 witnesses were to be called by him.

45.  The plaintiff has also asked for direction for a speedy trial of this action.  There is however no basis to support such a direction.      

Conclusion

46.  For the reasons above, the appeal is dismissed.  There is no reason to depart from the normal rule of costs follow event.  The plaintiff should pay the Director the costs of the appeal.

47.  The Director asks for a lump sum costs order under Order 62 rule 9(4)(b) of Rules of the High Court.  This is not a complicated or heavy appeal. I agree that it is appropriate to make a gross sum assessment of the costs so as to save the time and costs of a taxation of the costs.

48.  Mr Yuen who appears for the Director is a Senior Government Counsel and was called to the Bar in 1985.  He had spent three hours perusing the papers and the plaintiff’s written submissions, preparing the written submissions and for the appeal.  The hearing of the appeal took 2 hours 20 minutes.   The plaintiff argued that it was excessive for Mr Yuen to incur three hours in the preparation of the appeal.

49.  In my view, it will be appropriate to assess the costs of the Director on the basis of a brief fee to counsel to appear on the appeal.  Having regard to the nature and complexity of the appeal, I consider, on a party-and-party basis, a reasonable brief fee for a counsel competent to conduct the appeal is $15,000.

50.  Accordingly, the order I make on the appeal is as follows:

(1)	The appeal is dismissed.
(2)	The plaintiff pays the defendant the costs of the appeal assessed at $15,000.