LEUNG KAM CHUNG KENNETH v. COMMISSIONER OF POLICE

HCA 1936/2021

[2024] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1936 OF 2021

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D E C I S I O N

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1.  By a decision handed down on 19 September 2023 (“the Decision”), it was ordered, amongst others, that the Plaintiff’s summons for further and better particulars of the Defence (“FBP Summons”) be dismissed with costs to the Defendant. By a summons dated 24 November 2023 (“the Leave Summons”), the Plaintiff seeks leave to appeal against that order. The Defendant opposes the application on the grounds of inexcusable delay and lack of reasonable prospect of success on the merits.

Legal principles

2.  Leave to appeal is granted if the appeal has a reasonable prospect of success or there is some other reason in the interests of justice for the appeal to be heard: section 14AA(4) of the High Court Ordinance, Cap 4. Reasonable prospect of success means that the prospects of succeeding must be more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125, §17.

3.  On a matter involving exercise of discretion, it has to be shown that the Court has exercised her discretion under a mistake of law, or in disregard of principle or under a misapprehension as to the facts, or that the Court took into account irrelevant matters, or the conclusion which the judge reached in the exercise of her discretion was outside the generous ambit within which a reasonable disagreement is possible: Hong Kong Civil Procedure 2024, Vol 1, §59/0/54.

4.  In an application for extension of time for leave to appeal, the Court will take into account (i) the length of the delay, (ii) the reasons for the delay, (iii) the chances of the appeal succeeding if an extension of time is granted; and (iv) the degree of prejudice to the other party if the application is granted. See Lee Chick Choi v Best Spirits Co Ltd, HCMP 371/2015, §19, 21 May 2015, Kwan JA (as she then was).

5.  A supporting affidavit is required to give a full account of and explanation for the whole of the delay since time expired: KNM v HTF, HCMP 288/2011, 7 September 2011, §16, Fok JA (as he then was).

6.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits and not merely a reasonable prospect of success. In other words, he needs to demonstrate a strongly arguable case: Lee Chick Choi §19.

Plaintiff’s delay

7.  The deadline for seeking leave to appeal against the Decision had expired by 3 October 2023.

8.  The Plaintiff filed a Notice of Appeal on 16 October 2023 in CACV 321/2023 without first seeking leave to appeal.

9.  On 9 November 2023, the Registrar of Civil Appeals alerted the Plaintiff to the fact that the Decision was an interlocutory one. The Plaintiff was directed to either file and serve a summons for leave in the court below or lodge with the Court of Appeal written submission as to why the Notice of Appeal should not be struck out in the absence of leave to appeal.

10.  The Plaintiff then filed the Leave Summons together with a bundle of appendices on 24 November 2023. He was out of time for over 2 ½ months by then. He has never explained his delay but contends that no leave is required, relying on an appendix obtained from the Resource Centre for Unrepresented Litigants (“the appendix”).

11.  The part of the appendix that the Plaintiff relies on is about appealing against a decision made by a judge of the Court of First Instance “other than the above”, ie other than an interlocutory decision. Rather, the applicable rule is Order 59, rules 2B(1) and (2), which provide that the time frame for seeking leave to appeal is 14 days and should be made to the judge against whose judgment or order leave to appeal is sought.

12.  Even when told by the Registrar of Civil Appeals that he had adopted the wrong procedure, the Plaintiff had failed to act promptly and took another 2 weeks to file the Leave Summons.

13.  The delay in total of 7 ½ weeks was substantial and inexcusable. Accordingly, the Plaintiff has to show real prospect of success on the merits.

Merits of the intended appeal

14.  The Plaintiff’s written submissions are lengthy, repetitive and re-run of his arguments. The grounds of appeal can be summarized as follows:

(1)  The Decision failed to deal with the false statements/perjury of the Defendant in an appropriate, fair, just and effective manner (“Perjury Ground”);

(2)  This Court confused his request for further and better particulars with request for facts (“Confusion Ground”);

(3)  The Plaintiff seeks to justify his request for the name of the Head Commander in Charge so as to unveil the reason of the police’s failure to notice the onset of the fire at his premises (“Head Commander Ground”);

15.  For a start, refusal to order the provision of further and better particulars involves exercise of discretion. The Plaintiff has failed to show how the refusal has breached the principles in paragraph 3 above.

Perjury Ground

16.  The Plaintiff does not accept the Defence. I have held in the Decision that issues on perjury is for the trial judge and not for interlocutory application. The Plaintiff asserts that the Defendant committed perjury by reason of his adoption of the skeleton submission prepared by defence counsel to resist his FBP Summons (“D-SKS”). The Plaintiff fixates on various sentences in D-SKS which stated that “the Plaintiff is not requesting Further and Better Particulars Relevant to the Issues Pleaded in the Defendant’s Defence”. He asserts that he precisely was seeking further and better particulars “of the Defence” but the Defendant denied it.

17.  With respect, whether the Plaintiff was requesting for further and better particulars was a matter of substance and not syntax or wording. I have already in §§40-41 of the Decision explained why I considered the Plaintiff’s requests not to be for further and better particulars but concerned evidence and/or amounting to cross-examination in disguise, statement of facts and/or submissions. The Plaintiff has not shown how this Court’s view of his requests violated the principles in paragraph 3 above. The Defendant’s different view of the Plaintiff’s requests based on authorities cited in §39 of the Decision could not amount to perjury. The Perjury Ground has no real prospect of success.

Confusion Ground

18.  The Plaintiff is adamant that he has virtually all the facts. He is only asking for particulars. The main thrust of his submission contains the following queries:

(1)  How come “the police has no knowledge as to how the two tear gas submunitions broke through one of the windows as alleged”?

(2)  How come the police did not notice the outbreak of fire until being informed by passers-by and why the police acted with delay, resulting in loss of time in contacting the Fire Services Department (“FSD”)?

(3)  How come the Commander did not have the important professional foresight to take precautions to have the FSD stand by when the constables had to fire tear gar submunitions in a crowded and heavily populated area?

(4)  Why the sub-munitions were fired upwards towards the building instead of pointing towards the ground.

19.  With respect, how can a party give particulars of a fact that he had no knowledge of ? The rest of the Plaintiff’s submission concerns matters of evidence and submission, and do not justify an order for further and better particulars.

20.  The Plaintiff’s repeated reliance on Master Ho’s directions dated 13 December 2022 is misconceived. All that Master Ho did was to set a date by which the FBP Summons should be taken out, and he left the decision of whether to take out the Summons to the Plaintiff if he sees proper. Master Ho made no comment on the merits of the FBP Summons.

21.  The Confusion Ground has no real prospect of success.

Ground 3 - Head Commander Ground

22.  The Plaintiff asks for the name of the Head Commander in Charge. He wanted to know why the police was oblivious to the onset of fire and the excessive delay in making the RCCC aware of the fire incident.

23.  First of all, there was no reference to the Head Commander in Charge in the Defence. However, Police Officer B has already stated in §7 of his witness statement that he was the Commander of Platoon 4 and had the liberty to move around the scene to give command (§13). He was the one who had instructed Police Officer A to discharge the 2 TG shells towards the protestors (§§16 and 22). Since dismissal of the Anonymity Summons, the unredacted witness statement of Officer B’s has been filed and served. The Plaintiff’s request has thus, in substance, been answered.

24.  Secondly, how the mere name of a Head Commander could have provided an answer to what the Plaintiff wanted to know is beyond comprehension.

25.  Thirdly, at the suggestion of the Court, Officer B has, post-hearing, provided a supplemental witness statement dated 5 February 2024, which re-confirmed that there was no Head Commander in Charge.

26.  The Plaintiff’s submission raised a series of questions over the lack of a Head Commander, reinforcing this Court’s finding that the Plaintiff’s request is in substance submission or cross-examination. There is no prospect of success on the Head Commander Ground.

Prejudice to the Defendant

27.  It is plainly prejudicial to the Defendant to require him to give further and better particulars of something that would lead to nowhere. It will only delay the trial and cause each party to incur more costs.

Conclusion

28.  None of the intended grounds of appeal have any prospect of success. I therefore decline to extend time for issuing the Leave Summons and dismiss the same.

29.  On a nisi basis, costs should borne by the Plaintiff, which I summarily assess at $50,000, on party-and-party basis.

30.  I thank Ms Chao for her assistance.