CHAU HOI SHUEN, SOLINA HOLLY v. SEEC MEDIA GROUP LTD

HCA 1194/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1194 OF 2010

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REASONS FOR DECISION

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1.  This is a claim for defamation which has been fixed for trial on 10 September 2012 with 4 days reserved. In the PTR hearing on 24 May 2012, the defendant made an application for this action to be tried by a judge and a jury. I refused the application and I now give my reasons.

2.  The place and mode of trial have already been fixed by the order of Mr Registrar Lung dated 21 September 2011, and the plaintiff was given leave to set down this action for a trial of 4 days before a bilingual judge alone.  The trial has now been fixed to commence on 10 September 2012.

3.  In the listing questionnaire of the defendant dated 15 September 2011, the defendant indicated no objection to the proposed directions of the plaintiff which included an order for the trial to be heard by a judge alone.  Further, the defendant had not indicated its intention to make an application for jury trial.  The defendant only made such application by way of a summons dated 21 May 2012 which was 3 days before the PTR hearing.

Statutory provisions relating to jury trial

4.  The provision governing the jury trial of defamation cases in the Court of First Instance can be found in s 33A of the High Court Ordinance, Cap 4, which reads as follows:

“(1) Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue –

(a) a claim in respect of libel, slander, malicious prosecution, false imprisonment or seduction; or

… … …

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.

(2) An application under subsection (1) must be made not later than such time before the trial as may be prescribed by rules of the court.

… … …”

5.  The time for the making of such application is provided for in O 33 r 5(1) of the RHC:

“The provisions of rule 4(2) are, as respects any action and as respects any question of fact arising in such an action, subject to the provisions of section 33A of the Ordinance, but an application for trial with a jury under that section (the time for making which is, under that section, to be limited by rules of court) must be made before the place and mode of trial is fixed under rule 4.”

6.  If the defendant had made the application for jury trial before the determination of the mode of trial, it would have been much easier for the defendant to get an order for jury trial.  Unless the issues at the trial cannot be conveniently determined by a jury, the court would usually have to make such order if the application is made in good time.

7.  However, it is clear that the defendant here has not made the application in accordance with the time limit set out in O 33 r 5(1).  According to the English Court of Appeal’s decision in Cropper v Chief Constable of South Yorkshire Police [1989] 1 WLR 333, the court does not have the power to extend the time for the making of the application for a trial with a jury.  Despite that, the court has a discretion to vary a previous order made by the court relating to the mode of trial.  Mr Man, counsel for the defendant, therefore asks the court to treat the defendant’s summons as a variation application.

Jurisdiction issue

8.  The first issue I have to deal with is whether the court does have the jurisdiction to vary the order for setting down by ordering a jury trial at this stage.

9.  In Cropper, the English Court of Appeal held that the court did have such jurisdiction because O 33 r 4 of the then Rules of the Supreme Court allowed the court to vary the mode of trial by a subsequent order made before or even at the trial.  The wording of that rule is identical to that of the pre-CJR version of O 33 r 4(1) of the RHC which reads as follows:

“In every action begun by writ, an order made on the summons for directions shall determine the place and mode of the trial; and any such order may be varied by a subsequent order of the Court at or before the trial.”

10.  O 33 r 4(1) was amended during the CJR exercise with the effect of deleting the express provision relating to variation of order about the place and mode of trial.   It is clear that the object of such amendment is to require the litigants to address their mind to the issue of mode of trial at the early stage of the proceedings and to avoid any late application for variation of the mode of trial.  Despite such amendment, I am of the view that the court still retains the residual power to make an order regulating the conduct of the trial before it.  For example, the court can make an order to vary the place of the trial because of practical convenience.

11.  But in my judgment, such power should not extend to the circumstances of the present case.  Any residual or inherent power of the court must be subject to the express provisions in statutes.   S 33A of the High Court Ordinance and O 33 r 5(1) of the RHC clearly prescribe the conditions under which litigants can obtain an order for jury trial for defamation cases in the Court of First Instance, and it is also clear that the defendant has failed to comply with the mechanism in applying for a jury trial.  In such circumstances, and in the absence of any express statutory provision authorising the variation of the mode of trial, the court should not have the power to vary the previous order about the mode of trial by ordering a jury trial at this stage.  I therefore rule the jurisdiction issue in favour of the plaintiff.

Exercise of the discretion

12.  Even if I am wrong on the aforesaid issue and I do have the power and discretion to order a jury trial after the determination of the mode of trial, I would exercise such discretion against the defendant.

13.  In the pre-CJR case of George Y C Mok & Co (a firm) v Trade Advisers Company Ltd & Ors, unreported, HCA No 5019 of 2001 (decision on 19 February 2003), Chu J, as she then was, had to deal with a similar application for jury trial after the determination of the mode of trial.  After referring to the case of Cropper, the learned judge said the following at paragraph 13 of the decision:

“Accordingly, notwithstanding that the present application was made after the mode of trial had been determined and therefore contrary to the stipulation under section 33A(2) of the High Court Ordinance, the court still retains a discretion to order a trial with jury. Being a discretion, however, it will have to be exercised judicially and on good grounds. It is therefore for the defendants to explain and to set forth circumstances which merit the court exercising the discretion to vary the previous order made under Order 33, rule 4(1) and to order a trial with a jury.”

As no explanation was given by the defendants for the change of stance, Chu J refused to vary the previous order relating to the mode of trial.

14.  I agree entirely with the dicta of Chu J and I would adopt the same approach in dealing with the defendant’s application in this case.

15.  The defendant seeks to provide an explanation for the change of stance in the affirmation of Lee Eva filed on 23 May 2012. According to Ms Lee, the issue whether this action be tried with a jury had not been considered until the defendant and its legal team met in the consultation on 18 May 2012 to discuss the forthcoming PTR and matters pertaining to trial preparation.  After obtaining the advice of counsel about the right to apply for a trial with a jury, the defendant made the present application before the court.  The plaintiff had never consulted the defendant about the mode of trial before the case was set down for trial on 20 October 2011, and the defendant had never indicated in the listing questionnaire that it would elect for a trial by a judge alone.

16.  As the right to apply for a jury trial is a distinct feature of defamation claims, I find it surprising that the defendant’s legal team had not considered such particular issue before the case was set down for trial.  In order to achieve the underlying objectives introduced by the CJR, including increasing cost-effectiveness and ensuring that a case is dealt with as expeditiously as is reasonably practicable, the parties’ legal representatives certainly have a duty to raise all relevant issues for consideration by the court at the early stage of the proceedings and to avoid any late application.  This is particularly the case if the issue would prolong and affect the time estimate of the trial.  Although the defendant had not expressly made an election in the listing questionnaire for trial by a judge alone, the fact that it had indicated no objection to the plaintiff’s proposed directions shows the agreement for trial without a jury on the part of the defendant. Taking into account these considerations, I do not accept that the defendant’s explanation provides a good reason for the court to exercise the discretion in favour of the variation.

17.  In his submission, Mr Man relies on the case of Asia Television v Oriental Daily Publisher Limited, unreported, HCA No 6124 of 2000 (decision on 11 September 2001), in which Sakhrani J allowed a similar variation application relating to jury trial after the determination of the mode of trial.  In that case, the application was made at a very late stage and an order for a trial with a jury would have the inevitable effect of the trial dates being vacated and new dates being fixed with a longer estimate.  The evidence showed that it was only recently that the question of making an application for a jury trial was considered in the course of the preparation of the trial with counsel and the clients.  Nevertheless, Sakhrani J granted the variation application and ordered a jury trial.  Mr Man therefore relies on that case and urges the court to exercise the discretion in a similar manner.

18.  With respect, I do not accept that the defendant did provide a good reason for the exercise of the discretion in favour of the variation in the Asia Television case.  At the very least, this should not be a good reason after the implementation of the CJR in 2009, otherwise it would just encourage litigants to adopt a lax attitude in the preparation of their cases which is contrary to the underlying objectives stated in O 1A of the RHC.

19.  Despite such observation, there might a strong reason why Sakhrani J allowed the variation application in that particular case. The learned judge said the following in his judgment:

“3. Having heard the submissions, it is plain to me that the action is one which is eminently suitable to be tried with a jury. The trial does not, in my view, require any prolonger examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury. This is indeed accepted by Mr Liu for the plaintiff.

4.  Mr Chu submitted that the issues raised as to whether the words complained of in the article appearing in the Chinese newspaper are defamatory of the plaintiff and what article meant in its natural and ordinary meaning are matters which are best judged by a local jury.  I agree with Mr Chu.  It is, in my view, eminently sensible and suitable for such issues to be determined by a jury.”

20.  As that case was eminently suitable for trial with a jury for the reasons given, I can understand why Sakhrani J exercised the discretion in favour of the variation.  However, the same factor is not present here.  There is no dispute between the parties about the meaning of the alleged defamatory statements in the article in issue.  There is no plea of justification or fair comment.  I am given to understand that the only issue at the trial is whether the defendant can rely on the defence of innocent dissemination.  This is a question of mixed law and fact.  Although the court is required to make factual findings such as knowledge of the defendant about the alleged defamatory materials, a judge is capable and suitable to deal with the issue as good as a jury.  Hence, this is no compelling reason arising from the nature of the dispute which merits a new direction for a jury trial.

21.  Under O 38 r 2A(7)  of the RHC, for a trial with a jury, the court cannot make an order directing that the contents of the witness statements do stand as evidence in chief.  In such case, the witnesses will have to give lengthy evidence in chief which may prolong the trial.  Time should also be allowed for the empanelling of the jury.  Apart from the additional costs of the litigation, there is a risk that, if jury trial is ordered, the trial dates in September may have to vacated and refixed with a longer time estimate.  This is certainly not desirable.  Further, trial date is now a milestone date, and under O 25 r 1B(3), the court shall not allow a milestone date to be varied unless there are exceptional circumstances justifying the variation.  As there is no exceptional circumstances here, an order for jury trial should not be made at this stage.

22.  Based on these reasons, I refused to vary the previous order relating to the mode of trial in the present case.