AGACER JAMES C v. TANG SAI KEUNG AND ANOTHER

HCPI 916/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 916 OF 2014

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D E C I S I O N

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1.  This is plaintiff’s application to seek the court to exercise its power to override time limitation under section 30 of the Limitation Ordinance, Cap. 347.

BACKGROUND

2.  The plaintiff was a tenant in a “village house” and he claimed that he was assaulted by the defendants on 13 April 2010.  The 1^st defendant was the landlord and the 2^nd defendant was purported to be another tenant of the “village house”.

3.  It is not in dispute that the plaintiff gave a police statement on 5 May 2010.  The police had investigated the incident and did not pursue any further action.  There was no criminal prosecution.

4.  The plaintiff had then pursued various actions including complaining to the ICAC and, in February 2012, the plaintiff applied for Criminal & Law Enforcement Injury Compensation (“CLEIC”).  This was rejected in June 2012.  He then appealed against this decision in July 2012.

5.  Mr. Burke, the plaintiff’s solicitor, was acting for the plaintiff since 2009 regarding a claim for assault in 2008 (the “First Assault Claim”).  However, the plaintiff did not tell Mr. Burke about the current assault until 4 September 2012 when he asked Mr. Burke to assist in pursuing the claim for CLEIC.  Mr. Burke advised that he could apply for Legal Aid for this assault claim.

6.  The plaintiff stated in his First Affidavit that the records showed that he had applied for Legal Aid to pursue a claim for assault on 22 February 2013, which was still within the time limitation period.  The application was however only refused more than 1 year later on 31 March 2014.

7.  Before the refusal, for some unexplained reason, the plaintiff made another similar Legal Aid application on 19 December 2013.  He has also made various applications for Legal Aid assistance “to seek Judicial Reviews against CLEIC, Police, ICAC and Legal Aid themselves.”

8.  All were refused.

9.  In any case, by 31 March 2014, the letter of refusal from the Legal Aid Department has enclosed a written advice from counsel Mr. Deng which raised the limitation issue with regard to the UK decision of A v. Hoare (see paragraph 18(4) of the Third Affidavit of Patrick Michael Burke) (the “Counsel’s Advice”).

10.  Mr. Burke had a meeting with the plaintiff on 8 April 2014 but the plaintiff said “he had not yet read the documents from Legal Aid”, but the plaintiff asked Mr. Burke “to send a letter to Legal Aid Department…for them to reconsider the case”.  Mr. Burke wrote two letters on 9 and 17 April 2014 accordingly.  The argument raised was “they had never taken any statement from the plaintiff – nor ask him to explain the merit of his claim…” (see paragraph 19 of the Third Affidavit of Patrick Michael Burke).

11.  The next meeting was on 27 June 2014 during which Mr. Burke “specifically asked the plaintiff if he wanted to…issue a Writ of Summons – so time would stop running.”  Mr. Burke’s note recorded the plaintiff saying: “I thought had issued claim – by having applied for legal aid.”  This was clearly a mistaken belief.  Mr. Burke did not give any evidence as to what advice he gave but recorded that the plaintiff still “wanted to pursue the legal aid appeal first” (see paragraph 20 of the Third Affidavit of Patrick Michael Burke).

12.  Mr. Burke then met the plaintiff on 29 August 2014 and “he now agreed…to issue a Writ of Summons. This was prepared -  and the plaintiff issued it himself on the 15^th September 2014” (see paragraph 21 of the Third Affidavit of Patrick Michael Burke).

13.  The Writ and the Statement of Claim dated 15 October 2015 were served on the 1^st defendant.  The 1^st defendant, acting in person, filed and served his defence in November 2015 in which a defence in time limitation was raised.  The Writ has not been served to the 2^nd defendant as the plaintiff has yet to ascertain the address of service.

14.  The plaintiff took out the current application on 20 February 2017.

THE LAW

15.  It is trite law that the court should exercise its power to override time limitation “where it is equitable to do so” with “regard to all the circumstances of the case”.  These are all specified under section 30 of Limitation Ordinance so I need not repeat here.

THE CIRCUMSTANCES OF THE CASE

The length of, and the reasons for, the delay on the part of the plaintiff

16.  The alleged incident happened on 13 April 2010 but the writ was not issued until 15 September 2014, so there was a not insubstantial delay of 1 year and 5 months.

17.  The plaintiff firstly claimed that he did not know that there was a 3-year time limitation period.  Of course, it is trite that ignorance in law is not a defence.

18.  Furthermore, it is not in dispute that the plaintiff has had legal advice from Mr. Burke since 2009 with regard to the First Assault Claim, so it is not a case that he has no access to any legal advice.

19.  As stated above, the plaintiff only first raised this assault with Mr. Burke on 4 September 2012 at a meeting concerning the First Assault Claim.  He was advised to seek Legal Aid.

20.  Mr. Burke conceded that he was under the impression that the time limitation for an assault claim was 6 years, and “was not aware of the change of interpretation of the Limitation Act in the UK following the 2008 decision of A v Hoare”.

21.  I am of the view that this is the current position in Hong Kong regarding time limitation: A v Hoare [2008] 1 AC 844 was cited in the Hong Kong case of Wang Xi v Lee Pok Hok, Andrew [2011] HKCU 1737, albeit in orbiter.

22.  Again, a legal adviser’s ignorance in law does not provide a defence and, of course, an equitable recourse may lie in a claim against the legal adviser.

23.  Nevertheless, at this time, the “proper” time limitation has not passed.  The plaintiff in fact did not seek Legal Aid until 22 February 2013, some 5 months after receiving advice from Mr. Burke.

24.  There was delay but this was still more than 1 month before the time limit.

25.  Incidentally, this raise another question concerning the merit of the claim (which I will discuss later): if the plaintiff was so certain as to the identities of his assailants and the circumstances of the attack, and since he already has the experience of seeking Legal Aid assistance in the First Assault Claim, why would he delay seeking Legal Aid for almost 3 years after this attack?  Why would he need Mr. Burke to advise him to seek Legal Aid (and, even then, delayed the process by another 5 months)?

26.  Legal Aid Department has taken some time in assessing the application and the plaintiff only received the letter of refusal from Legal Aid Department dated 31 March 2014.  This letter has enclosed the Counsel’s Advice “in which he deals with the issue of limitation and refers to the UK decision of A v Hoare” (see paragraph 18(4) of the Third Affidavit of Patrick Michael Burke).

27.  This date is crucial: whilst the plaintiff might blame Mr. Burke for previously advising him that the time limitation was 6 years (which might explain his inaction), from 31 March 2014 onwards, it should be clear that Mr. Burke’s advice might not be correct and the plaintiff should not delay further.

28.  Mr. Burke stated that the plaintiff met him on 8 April 2014 but “said that he had not yet read the documents from Legal Aid”.

29.  The plaintiff, on the other hand, stated (in paragraph 22 of his First Affidavit) that: “I only learnt that there was a time limit – and that this was 3 years – when I was given a copy of the counsel Deng 4^th opinion in March 2014”.

30.  I do not accept that the plaintiff “learnt” this in March 2014.  Mr. Burke recorded that the plaintiff had not yet read the documents from Legal Aid Department.  There was no record of any discussion regarding this issue which, logically, must override any concern with writing to Legal Aid Department for reconsideration of the application.  Even if they did not, at that stage, entirely agree with the Counsel’s Advice, the only reasonable and sensible option was to issue a writ without delay to stop the time.  Only then, one could take time to bring the matters up to Legal Aid.

31.  Thus, as it would seem, without reading the Counsel’s Advice thus fully understanding the reasons for Legal Aid’s refusal, the plaintiff had asked Mr. Burke “to send a letter to Legal Aid Department…for them to reconsider the case”.  Mr. Burke then listed the reasons for “reconsideration” of the case: “they had never taken any statement”, “nor ask him to explain the merits” etc.

32.  Mr. Burke also stated that he wrote to Legal Aid Department on 8 and 17 April 2014 enclosing “further documents”.

33.  No issue appeared to be raised on time limitation which only shows that they must be unaware of this issue, and time was simply wasted in writing (twice) to Legal Aid Department.

34.  It is somewhat surprising that both the plaintiff and, as it seemed, Mr. Burke himself, failed to read the Counsel’s Advice before writing (twice) to Legal Aid Department.

35.  As stated above, it appeared that only on the meeting on 27 June 2014 that the time limitation was first raised.  One might assume that Mr. Burke and the plaintiff must have, by now (some 3 months later), read the Counsel’s Advice.  Mr. Burke did not give evidence as to what advice he had given to the plaintiff (one would expect that a reasonable legal adviser would advise “You should issue a writ NOW!”) but Mr. Burke stated “He wanted to pursue the legal aid appeal first”.

36.  There was another meeting on 29 August 2014 and the plaintiff finally agreed to issue a writ.  Even then, the plaintiff did not do this until 15 September 2014.

37.  Whilst the plaintiff might explain the delay of issuing action until 31 March 2014 because he received “improper” legal advice from Mr. Burke regarding time limitation, there need to be good reasons for further delaying the process once the Counsel Advice was received.

38.  I would imagine a scenario that the plaintiff had issued a writ without further delay around April 2014, and if the case was nevertheless time barred, the plaintiff might have a recourse against Mr. Burke.

39.  But this is not the case here: the plaintiff delayed for another 5 months, and this was when the plaintiff (and Mr. Burke) were clearly aware of the risk that time limitation might not be 6 years.

Disabilities

40.  Mr. Burke submitted that the plaintiff suffered from various disabilities: for example, he suffered from Bipolar disorder, he was assaulted in 2008 resulting in, amongst others, a fractured skull, he was undergoing psychiatric and psychological treatment and taking various medications, he also suffered multiple injuries after the alleged 2010 assault etc.  These were detailed in the plaintiff’s witness statement as well as in the comprehensive set of medical records submitted for the hearing.

41.  However, Mr. Tang, the 1^st defendant, submitted that despite all his alleged disabilities, the plaintiff was perfectly well enough to pursue complaints to the police, ICAC, application to CLEIC, multiple applications to Legal Aid Department, appeals and Judicial Reviews, instructing a solicitor Mr. Burke for many such actions, as well as obtaining Legal Aid and instructing Mr. Burke to pursue the First Assault Claim to its conclusion at a Damages Assessment hearing etc. all this time.

42.  I agree.

43.  The plaintiff may blame Mr. Burke’s “improper” advice on time limitation for the delay up to 31 March 2014, but he certainly cannot blame any disabilities for the delay after that date: he has in hand the Counsel’s Advice, he has his solicitor, and he was capable of attending at least 3 meetings with Mr. Burke (8 April 2014, 27 June 2014 and 29 August 2014).  I found no good reasons for this delay.

Merit of the case

44.  A further consideration is the merit of the case:

“If the plaintiff’s claim is a poor case lacking in merit, there may be significant and relevant prejudice to the defendant if the limitation provisions are directed to be disapplied…It is not appropriate for the court to go into the details of the evidence in considering questions under S.30 at the interlocutory stage. What is more important for the court to consider is whether the plaintiff has any reasonable prospect of success...where the court takes into account the prospect of ultimate success, it must take very great care when deciding to do so and must specifically ensure that all matters that might be taken into account are in fact considered” (Hong Kong Civil Procedure 2018, book 2, page 342, paragraph F1/30/13)

45.  The plaintiff’s case, taken to the highest, was that he was assaulted by 2 masked men coming out of the stairway door (that led to the upper floors of the village house).

46.  He claimed that he could recognise the 2^nd defendant as one of the assailants because “I nearly met him every day and I could recognise him by the shape, build, clothes and voice” (paragraph 58 of the plaintiff’s Witness Statement as to Facts dated 20 February 2017 (the “plaintiff’s Witness Statement”)).

47.  However, the plaintiff has never stated how he could recognise the 1^st defendant as the other assailant.  No evidence of any means of identification was given in either the plaintiff’s police statement dated 5 May 2010 or the plaintiff’s Witness Statement.

48.  It is of note that the plaintiff’s Witness Statement runs to some 42 pages (and includes rather irrelevant details such as each of the plaintiff’s parents’ age of death, occupation and health information).  Yet, it contains no further evidence on the crucial issue on the identification of the assailants.

49.  The only relevant evidence against the 1^st defendant was that the plaintiff claimed that he had earlier seen the 1^st defendant talking on his phone in front of his patio doors and saw him entering the stairway door, and he has produced photographs that allegedly showed the 1^st defendant walking up the staircase whilst talking on his mobile phone.

50.  Thus, the plaintiff’s evidence that one of the assailants was the 1^st defendant was already extremely thin to begin with.

51.  On the other hand, there were numerous objective evidence to show that the plaintiff was drunk at the time.  He himself admitted that he “may have been a little drunk”.  There may also be issues with his memory of the incident, for example, he was not sure if the assailants had weapons or were wearing gloves.

52.  The plaintiff also had a long history of drunkenness behaviour as documented as police records under paragraph 54 of the plaintiff’s Witness Statement: numerous incidents of “drunk person”, and incidents of “dispute”, “common assault”, “insane person found”, “criminal damage” going back to at least 2009.

53.  There was an incident on 16 July 2009 that the plaintiff had a dispute with a driver for “not following the traffic light”.  And upon police arrival, “enquiry made with other passengers revealed the driver did follow the traffic light and the data subject was drunk.”  There were other incidents of the plaintiff complaining of “lost” or “stolen” property sometimes in a drunken state.

54.  Of course, he himself claimed that he suffered from “loss of memory” after the 2008 assault (paragraph 49 of the plaintiff’s Witness Statement).

55.  Mr. Burke also submitted that the plaintiff has spent time seeking the police statement made by Madam Kwong (“Obtaining Liability Documents” of the Third Affidavit of Mr. Burke).

56.  As I have earlier observed: if the plaintiff was so certain of the circumstances of the assault, he should have applied for Legal Aid and informed Mr. Burke immediately after the assault.  Instead of pursuing CLEIC and seeking police statements etc., the logical step forward must be to make a personal injury claim against the assailants, just like what he did in the First Assault Claim.

57.  All these would invariably raise a big question on credibility on part of the plaintiff as well as the reliability of his memory, not to mention the lack of evidence, especially against the 1^st defendant.

58.  Mr. Burke has submitted at length regarding possible motive for the assault: according to the police statement of Madam Kwong, the plaintiff had earlier attempted to pour excrement onto her car, and she had called the landlord, the 1^st defendant, to discuss this.  The implication was that they, along with the 2^nd defendant, then implemented this plan to assault the plaintiff.

59.  However, this incident was denied by the plaintiff (see paragraph 66 of the plaintiff’s Witness Statement).  Thus, the plaintiff’s own evidence does not support a motive.

60.  The 1^st defendant also said that he has no motive to assault the plaintiff.

61.  I note from the police records reproduced in the plaintiff’s Witness Statement that (with regard to an incident on 26 March 2010):“The landlord claimed that he rented the flat to the data subject (the plaintiff) and the contract was going to end on 2010-4-30.”  Neither the plaintiff nor the 1^st defendant disputed this.

62.  I would think that this might support the 1^st defendant’s contention that he had no motive: why would he assault his tenant (over an alleged dispute (denied by the plaintiff) between his two tenants), even if the plaintiff has been rather troublesome, when the tenancy would in any case end in 2 weeks?

63.  In all, as far as the case against the 1^st defendant is concerned, I see substantial problems with identity, credibility and reliability of memory.  There was also a general lack of evidence as well as motive for the assault.  After considering all the evidence presented, I fail to see any reasonable prospect of success.

Prejudice

64.  Mr. Burke submitted that the 1^st defendant never suggested in his affirmation that there was evidential prejudice like fading of memories or loss of contact with witnesses etc. with time.

65.  To be fair, the 1^st defendant did submit in court that his memory was fading.  However, I note that the 1^st defendant’s case was that he was not present at the assault.  He was all along with Madam Kwong at the relevant time.  In any case, from his submissions to the court, he did appear to remember some relevant details of what had happened that night.

66.  I do not think that there is significant prejudice against the 1^st defendant regarding evidence.  Rather, there is clearly “significant and relevant prejudice” to the 1^st defendant on the basis as stated abovethat “the plaintiff’s claim is a poor case lacking in merit”.

CONCLUSION

67.  Having regard to all the circumstances of the case including the length and reasons for the delay, the merit and prejudice, I would dismiss the plaintiff’s application as against the 1^st defendant.  It is clearly not equitable to allow the action to proceed against the 1^st defendant.  I therefore find that the plaintiff’s claim against the 1^st defendant to be time barred.

68.  As regards to the application against the 2^nd defendant, the writ has yet to be served so, of course, no defence of time limitation has been raised by the 2^nd defendant.  It also follows that the Summons has not been served to the 2^nd defendant.  It is therefore entirely premature to seek such an application against the 2^nd defendant.  I also note that even now, the plaintiff does not know the current address of the 2^nd defendant to effect service.  

69.  I will therefore make the following order:

a)   The plaintiff’s claim against the 1^st defendant is time barred.

b)   No order is made regarding the plaintiff’s application as against the 2^nd defendant.

c)   Costs of and occasioned by this action, including this application, be to the 1^st defendant to be taxed if not agreed.  The plaintiff’s own costs be taxed in accordance with Legal Aid Regulations.