FASTWAY TECHNOLOGY LTD v. NGAI SHING (HK) PRODUCTS MANUFACTORY LTD

DCCJ 3727/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3727 OF 2010

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REASON FOR DECISION

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Application

1. This hearing concerns the plaintiff’s application for an order of transfer from the District Court to the Court of First Instance in relation to assessment of damages as per his summons dated 5 May 2012.  The background of this case is summarised in the judgment of HH Judge H C Wong given in March 2012 when she dealt with the plaintiff’s application to cite the defendant’s directors for contempt.  I do not intend to repeat it.

2. According to the affirmation in support and filed on 5 May 2012, the sole reason for the transfer application is that after the plaintiff's own calculation, the damages is estimated at HK$2,181,817.60, hence exceeds the jurisdictional limit of the District Court.

3. On 14 May 2012, HH Judge C M Leung gave directions on the captioned summons, including the timetable to file and serve affirmations.

4. By an affirmation filed on 15 June 2012, the plaintiff further elaborated on the background and how to calculate the alleged damages revised at the amount of HK$2,095,535.60.

5. Mr Wong of the defendant whose affirmation was filed on 11 July 2012 seemed to comment on the plaintiff's calculation but he did not react as to whether the court should make a transfer order.  Leave was granted by HH Judge H C Wong to the defendant to file further affirmation.  By Wong's affirmation filed on 7 August 2012, the defendant stated that the plaintiff exaggerated the claim and asked the court to dismiss the plaintiff's claims for damages.  Mr Wong of the defendant asserted in this hearing that the amount claimed is unreasonable while plaintiff indicated that he would further revise and increase the amount of the claim from HK$2,095,535.60 and in addition, he would quantify different heads of the claims such as loss of business, loss of reputation and loss of chance in due course.

Discussion

6. Both parties are acting in person with the plaintiff as a native English speaker and the defendant's director as a local resident.  I will express the legal mechanisms in simple terms.  O 37 of the Rules of the District Court governs the mechanism about assessment of damages.  Initially, the court is trying to explore if there is any available mechanism that the District Court can continue to handle the matter, hence saving time and cost.  However, the only mechanism under s 41 of Cap 336 only applies to a situation where a defendant has a counterclaim, which is not the case here.  As to the question of transfer, the court would not conduct a mini trial at this stage unless it is obvious that some items are abuse of process, the court has little choice but to make an order of transfer when the monetary amount exceeds 1 million. 

Orders

7. The assessment of damages be transferred to the Court of First Instance. 

8. Cost incurred before and after the transfer be decided by the Court of Instance.

9. Cost of and occasioned by the plaintiff’s summons dated 5 May 2012 be in the cause.