TSUI KOON WAH v. LAM KING YUEN AND OTHERS

HCA890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.890 OF 2003

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REASONS FOR DECISION

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Introduction

1. By summons dated 23 July 2003, the plaintiff sought to strike out paragraphs 5b, 5c and 23 of the Amended Defence on the ground that they were frivolous and vexatious under Order 18, rule 19 of the Rules of the High Court. By a second summons dated 9 October 2003, the plaintiff applied to strike out paragraph 5a of the Amended Defence on the ground that it is scandalous under the same rule of court. The plaintiff by a summons dated 22 October 2003 applied to amend the Amended Defence.

2. All these summonses came before the master on 27 October 2003. He dismissed the plaintiff's striking out applications and allowed the defendant's application to amend. Dissatisfied, the plaintiff appealed. On 18 December 2003, I dismissed his appeals with costs. These are my reasons.

The striking out applications

3. I first deal with the striking out applications.

4. At the material times, the plaintiff was a social security assistant of the Social Welfare Department on contract. On 3 January 2003, he was dismissed from service with effect on the following day without payment in lieu of notice. He commenced the present action for defamation against the defendants. In paragraph 3 of the Amended Statement of Claim, the plaintiff referred to the Notice of Intended Dismissal dated 11 December 2002 sent by the 4th defendant to the District Social Welfare Officer (Yau Tsim Mong) ("The Notice"), seeking approval for dismissing the plaintiff. He alleged that the statements contained in the Notice were defamatory. In paragraph 4 of the Amended Statement of Claim, the plaintiff alleged, inter alia, that a report prepared by the 3rd defendant on one of the incidents leading to his dismissal was defamatory ("the Report").

5. In paragraph 4 of the Amended Defence, the 4th defendant denied that the statements in the Notice were defamatory. In paragraph 5 of the Amended Defence, the 4th defendant put forward an alternative plea of justification. He then gave the particulars of the relevant events in paragraphs 5a, 5b and 5c.

6. The 3rd defendant dealt with the plaintiff's averment in a similar way. In paragraph 22 of the Amended Defence, he denied that the Report was defamatory. He advanced a plea of justification in paragraph 23 of the Amended Defence.

7. The defendant's version of the events was basically denied by the plaintiff. For present purposes, it is not necessary to set out the differences between the parties on those events.

8. Applying to strike out paragraphs 5a, 5d, 5c and 23, the plaintiff argued that the versions of the events put pleaded by the 3rd and 4th defendants were untrue. He submitted that there was no triable issue and the defence of justification must fail.

9. In my view, the plaintiff's submission is wholly misconceived. The issues given rise by paragraphs 5a, 5b, 5c and 23 of the Amended Defence cannot be resolved on pleadings or affidavit. The court will not strike them out simply because the plaintiff maintains that they are not believable. It is a matter for trial and not for striking out.

10. The master was correct in dismissing the plaintiff's striking out applications.

The amendment application

11. I next turn to the defendant's application to amend. It is not necessary to set out the re-amendments in detail. Suffice it to say that the effect of the re- amendments is to clarify certain factual issues. I fail to see any grounds for not allowing the re-amendments. The plaintiff submitted that the re-amendments gave rise to some inconsistency. In my view, even assuming that there were inconsistencies as alleged, it is not a ground for refusing the re-amendments. Such inconsistency, if sustained at trial, goes to credibility of the witnesses and the merits of the defence.

Conclusion

12. For the above reasons, I dismissed the plaintiff's appeals with costs.