MARTNOK THANRADEE v. COMMISSIONER OF POLICE AND ANOTHER

HCA 789/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 789 OF 2011

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D E C I S I O N (NO 2)

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I. INTROUCTION

1. Judgment in this action was handed down on 14 July 2016 (“Judgment”). This Decision (No 2) should be read together with the Judgment. For easy reference, I shall adopt the abbreviations in the Judgment.

2. On 22 October 2014 (ie after Mr Shum, counsel for Ds, served his written closing submissions and shortly before the hearing for oral closing submissions on 31 October 2014), P filed a summons for leave to amend the RASoC to add the following averments (“Amendment Summons”) and also filed her supporting 2^nd affirmation:

(a)  paragraph 8(t): PC48544 fabricated the incident which led to the Noise Summons that he attended Grow Karaoke for a second time on 9 November 2006 (at 01:20am) when in fact he only attended Grow Karaoke once that day (at about 01:00am);

(b)  paragraph 10: P’s Arrest on/about 27 September 2006 was “wrongful, without legal basis, and/or as the arrest was based on a false allegation made by police officers WPC4970 and [WPC1017]”.

On 28 October 2014, DoJ wrote to advise P’s solicitors that Ds would leave P’s application for (a) above to the court’s discretion, but would oppose P’s application for (b) above on the grounds of lateness, absence of good/strong justification and/or insufficient indication in the course of trial that this was matter in controversy, etc. On 31 October 2014, I dismissed P’s application for (b) above to amend paragraph 10 of the RASoC, but reserved (i) my reasons for such dismissal and (ii) my decision on P’s application for (a) above to amend paragraph 8(t) of the RASoC (and I heard counsel’s oral closing submissions in this respect on de bene esse basis).

II.  PARAGRAPH 10

3. Paragraph 10 of the RASoC concerned the False Imprisonment Claim. P suggested “the addition of the few words is purely a technicality matter”. Mr Leung, counsel for P, submitted it was a “play safe” plea because it was implicit in any averment of false imprisonment that the alleged “imprisonment” was without legal basis. But even though the Amendment Summons was filed after close of evidence and service of Mr Shum’s written closing submissions, Mr Leung was unable to articulate what specific legal basis was impugned by “the addition of the few words” of “without legal basis”. Mr Leung contended it was not for P to say as it was up to Ds to justify P’s Arrest, but in fairness I should mention Mr Leung did orally submit that even on Ds’ case P’s Arrest was without legal basis as Ds claimed P was not even at the Pub during the covert undercover operation on 27 September 2006. It therefore appeared P wished to assert P’s Arrest was without legal basis whatever Ds’ case might be. Mr Leung submitted the proposed amendment should be allowed for determining the real issue between the parties and there was no injustice to Ds, and P should not be punished for mistakes made in the conduct of her case.[1]

4. I disagree.

5. This was no doubt a very late application. Since the proposed amendments touched on matter(s) of law, the grounds in P’s 2^nd affirmation did not fully justify the lateness of the application. I find no sufficiently persuasive reason had been given for the lateness, especially when P was legally represented during the pre-trial reviews and at trial (if not earlier).

6. I note Order 18 rule 7 of the Rules of the High Court (“RHC”) requires material facts to be pleaded. There is no need to plead law although a point of law may be raised in a pleading (see Order 18 rule 11 of the RHC). The purpose of raising a point of law is to define or isolate an issue or question arising on the facts as pleaded, and indeed it may be essential if the case is to be advanced properly.[2] But rather surprisingly, P was unable even at the stage of closing submissions to identify what point of law she wished to raise other than a broad and apparently limitless “play safe” plea.

7. The original pleading in the RASoC was specific as to why P’s Arrest was wrongful, ie “[the] arrest of [P] on or about 27^th September 2006 is wrongful as the arrest was based on a false allegation made by the police officers WPC4970 and [WPC1017]” (my emphasis). In light of such specificity, Ds called the WPCs to give evidence to rebut such allegation and to demonstrate the lawfulness of P’s Arrest. The proposed amendment plainly introduced uncertainty rather than clarity to P’s pleaded challenge as to the lawfulness of P’s Arrest (ie by turning the assertion that “the arrest was based on a false allegation made by the police officers WPC4970 and [WPC1017]” from being the sole pleaded challenge into 1 of a number of reasons for the alleged unlawfulness of P’s Arrest, including the unparticularised assertion of “without lawful basis” now sought to be introduced). I agree with Mr Shum that to allow P to raise such broad averment after close of evidence would undoubtedly cause Ds to suffer forensic prejudice.

8. Mr Leung suggested Mr Shum’s submission was a red-herring argument because every defendant facing an application for amendment of pleadings at any stage of proceedings would say they needed to put forward a different evidential response. In my view, in dealing with a case-specific application to amend pleadings made so late that it was beyond the 11^th hour, it was rather pointless to pray in aid generalities that might be more suited to applications made at an earlier stage of litigation. That said, I do not necessarily ascribe to Mr Leung’s suggestion because at an earlier and more formative stage of legal proceedings amendment of pleading are often dealt with without serious challenge because there would be time/opportunity to deal with any forensic concerns. In my view, Mr Shum’s submissions could not be brushed aside so lightly.

9. For the present purpose, it is useful for this court to refer to the clear guidance by the Court of Final Appeal on the rationale/purpose of pleadings in Sinoearn International Limited v Hyundai-CCECC Joint Venture (a firm)[3] and Kwok Chin Wing v 21 Holdings Ltd.[4]

10. In the former case, Ribeiro PJ noted the extraordinary situation of a plaintiff being allowed at trial to run two alternative unpleaded cases without being required even to formulate a proposed amendment setting out what exactly those alternatives are, and the even more extraordinary situation of the plaintiff proceeding on appeal on the basis of the alternatives still not pleaded by way of amendment – and succeeding on one of those alternatives. The learned judge (with whom Chan Acting CJ, Tang PJ, Mortimer NPJ and Gault NPJ agreed) said:

“27. …… This has given rise to confusion and a real likelihood of procedural unfairness.

……

30. …… A party must raise all the issues he wishes to raise to be dealt with at the trial. Parties are not entitled to have issues recently thought up dealt with separately and piecemeal. The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken. ……

31. Where a late attempt is made to introduce a new case, it is doubly important that the other side should have a clearly pleaded draft amendment so that proper consideration can be given as to whether objections should properly be made to such amendment and whether an adjournment should be sought.

32. Au J stated that counsel for the defendant had not “clearly identified any specific prejudice that would have [been] caused to the defendant if [the alternative cases] are so allowed to be run” or shown “what evidence the defendant would have adduced had these alternative cases ... been specifically pleaded...” With respect, without having seen even a draft amendment such inability is not surprising. Indeed, the inability to be specific as to those matters itself constitutes prejudice.

33. When the case came on appeal before this Court, argument was frequently bedevilled by confusion as to the nature of the alternative cases contended for. There were times when the plaintiff’s argument drifted uncertainly, oscillating between what the Court had endeavoured to understand the two alternatives to be. There were gaps in the evidence that would no doubt have been considered if the case had been properly constituted. The response of counsel for the plaintiff that such gaps could be approached on the basis that “the point was not disputed” could not be accepted: How could one expect the other side to dispute, or to come ready with evidence to refute, a point that has not been pleaded or even formulated in draft?

34. Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly. “

Mortimer NPJ at paragraph 84 of the judgment summed it all in saying that “[claims] must be made and answered in pleadings or injustice may be the result”.

11. In the latter case, the plaintiff raised a case of joint and several liability as a point of law without pleading it, but the Court of Final Appeal held that an agreement to establish a case on the basis of joint and several liability must be properly pleaded. Ma CJ in the Reasons for Judgment said as follows:

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case) so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

“(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be ‘slipped in’ when evidence is being given in the hope that the other side is not sufficiently alert to object.”

22. In the present case, much reliance was placed on the Plaintiff’s testimony given in cross examination to evidence the assertion made before us to the effect that the Rockapetta Group companies accepted a joint and several liability in respect of the Plaintiff’s loans. It is simply not permissible for an issue to be raised in this way: one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings. I would perhaps also observe here that in any event the said passage from the Plaintiff’s testimony at best indicates only a subjective intention on his part. This is not admissible to establish the terms (or even the existence) of an agreement.

23. The purpose of pleadings, in clearly and unambiguously setting out the true extent and nature of a dispute not just for the benefit of the parties but also for the Court in managing and trying cases, remains important under our system of civil justice. The retention of the old rules as to pleading as well as the introduction of new provisions over four years ago under the Civil Justice Reform, reinforce this.

24. One of the new provisions introduced under the Reform was RHC o.18 r.12A which reads:

“ A party may in any pleading make an allegation of fact which is inconsistent with another allegation of fact in the same pleading if–

(a) the party has reasonable grounds for so doing; and

(b)  the allegations are made in the alternative.”

If the Plaintiff had, as he ought to have done, sought leave to plead a case on joint and several liability, questions would inevitably have been raised as to whether the Plaintiff could in the first place properly plead such a cause of action, which would have been (at least at first blush) quite inconsistent with his pleaded case based on the Initial Agreement and the Subsequent Agreement. The cause of action based on these Agreements assumed that there was no pre-existing liability as far as RHL was concerned, hence the need to enter into agreements which made RHL liable for the repayment of the loans to the Plaintiff.  In these circumstances, it would therefore have been quite difficult to see how a pre-existing liability jointly and severally assumed with others, fitted in.  Before us, the Plaintiff did not provide any enlightenment on this.  To me, this only served to highlight even more the insuperable weaknesses in the Plaintiff’s case made on this new basis.

……

26. This appeal is the second case in which this Court has recently had occasion to comment on pleadings (or rather, the lack thereof).  In Sinoearn International Limited v Hyundai-CCECC Joint Venture, Ribeiro PJ referred to the “extraordinary” position of a party being permitted to run at trial an unpleaded case.  I associate myself with the sentiments expressed in that judgment.  As stated by Ribeiro PJ:-

“34. Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”

27. The failure properly to raise a cause of action based on joint and several liability would have been enough to dispose of this appeal. ……”

12. In Tajudin Sunny v Bank of America National Association,[5] To J applied the principles in Kwok Chin Wing and refused to allow the plaintiff to rely on an unpleaded implied term of trust and confidence in an employment dispute, and held that a party may not, on the pretext of legal argument, be allowed to wander into unpleaded arena, leaving his opponent pondering what case he has to meet and catching him unprepared. The learned judge went on to say that the issue raised by the legal principle  in relation to an implied term of mutual trust and confidence must be pleaded to enable the other side (if it wished) to marshal “a separate set of legal arguments, adduced other evidence and cross-examined on a different basis and presented its case differently”.

13. These observations are illustrations of trite principles, and are plainly apposite in the present situation. The proposed “addition of the few words” of “without legal basis” was not simply a matter of pure law. It tended to raise legal issues on a given set of facts, and it would be necessary for Ds to know what such given set of facts was that raised the legal contention that P’s Arrest had no legal basis. Was it merely because the WPCs’ evidence was a tissue of lies and/or (according to them) P was not inside the Pub during the operation? Or was it something else? Ds were entitled to know what that was and to marshal factual evidence and legal arguments in response. I bear in mind the current specificity of P’s averment in paragraph 10 of the RASoC, and the fact that Ds did not call as witness P’s arresting officer (who was not either WPC4970 or WPC1017 or any undercover agent but another police officer who subsequently entered the Pub with SIP Yung on 28 September 2006). I am not convinced by Mr Leung’s inadequate suggestion that since P’s Arrest happened inside the Pub, it should be properly documented and hence the burden fell on Ds to dispel any challenge that might be thrown at them on the issue of the lawfulness of P’s Arrest. For all of the above reasons, the application to amend paragraph 10 of the RASoC was too late and would cause Ds to suffer irreparable forensic prejudice. I have dismissed such application.

III.  PARAGRAPH 8(t)

14. As for the proposed amendment to paragraph 8(t) of the RASoC, it concerned P’s Malicious Prosecution Claim in connection with the Noise Summons/Trial. Having considered the evidence before me and counsel’s submissions, I allow the application.

15. P accepted the proposed amendment to paragraph 10 of the RASoC had not been pleaded previously (hence the necessity of the application). It was clear also that P was not alive to such need even up to the commencement of the trial since Mr Leung in paragraph 12 of his written opening submissions stated “[the] parties agreed that the facts have been sufficiently pleaded in the [RASoC] ……”  However, P suggested Ds should not have been surprised by such application to amend because Mr Leung did put to PC48544 at the Noise Trial and in the present trial that he only attended the Pub once on 9 November 2006.

16. Nevertheless, P blamed the lateness on (a) Ds’ failure to adduce witness evidence to help P’s legal team understand/read the 999 Records, (b) Ds’ delay in production of the unredacted 999 Records, (c) Mr Leung did not feel/sleep well before the hearing for closing submissions because the deceased Husband entered his dreams and begged him for help, (d) the deceased Husband inspired Mr Leung to discover information in the unredacted 999 Records that evidenced PC48544’s fabrication of the 2^nd Entry on 9 November 2006. But in my view, none of the reasons afforded any justification for the lateness of the application to amend when Mr Leung was able to put to PC48544 at the Noise Trial way back in April 2007 that he only attended the Pub only once at about 01:00am on 9 November 2009. In my view, there was fairly little excuse why P did not plead such known material fact even though she had amended her pleadings twice already.

17. In the end, P’s only contentions were that (a) Ds would not be surprised and/or forensically prejudiced, and (b) given P’s grave allegations against the police there was a public interest consideration in allowing the proposed amendments.

18. On the other hand, Mr Shum in his written/closing submissions (lodged before the Amendment Summons was filed) submitted the Noise Summons was dismissed on a legal point, ie the Public Place Point, but there was no plea in the RASoC or other evidence adduced as to malice on the part of PC48544, and Mr Leung did not (a) put to PC48544 at the Noise Trial that he gave false evidence of being annoyed by loud music when he attended the Premises on 9 November 2006, (b) challenge the corroboration by Lee and/or (c) put/suggest to WSIP Ng that PC48544’s evidence was fabricated. He reminded Lee gave evidence at the Noise Trial that he made the 1^st and 2^nd Noise Complaints by 999 calls in the Early Hours, so irrespective whether PC48544 attended the Premises once or twice that night there could not have been any dispute the noise complaints were genuine.

19. Whilst Mr Shum’s above submissions might to relevant to the veracity (or otherwise) of P’s case for the trial proper, they were not concerned with the focal point of the proposed amendments to paragraph 8(t)  of the RASoC which suggested that PC48544 manufactured the 2^nd noise incident for the Noise Summons in that he did not make the 2^nd Visit at/about 01:20am.

20. So Mr Shum turned to paragraph 8(t) of the RASoC which pleaded that during the Noise Trial PC48544 and Lee “gave contradictory evidence on the issue of when and whether it was [Lee] who had reported to the police for noise annoyance on the material day. [PC48544] further gave false evidence that he was annoyed by loud music when he arrived outside Grow Karaoke.” P adopted paragraph 42 of her own witness statement as part of her evidence-in-chief, and complained that both Lee and PC48544 gave false evidence at the Noise Trial that they were disturbed by noise emanating from the Pub. Mr Shum submitted there was nothing in P’s witness statement about whether PC48544 visited the Pub on 9 November 2006 (let alone once or twice), and P’s evidence at trial made no specific mention that P only entered the Pub once and not twice on 9 November 2006 (which subject was not revisited in her re-examination).

21. Even though Mr Leung did put to PC48544 at the Noise Trial that he had been to the Premises only once on 9 November 2006 at/about 01:00am, it was plainly a new plea hitherto not previously raised in the present action. There was no merit to Mr Leung’s suggestion that since PC48544 and WSIP Ng were the prosecutors of the Noise Summons, they knew how many times the Noise PCs went to the Pub on 9 November 2006, and since it was Ds’ positive case that the Noise PCs went there twice, it was for them to prove such fact to explain/demonstrate they did not attend the Premises merely once. If such argument were taken to its logical conclusion, the burden of disproving P’s unpleaded assertion fell on Ds, so simply there would have been no need for P’s proposal to amend paragraph 8(t) of the RASoC.

22. Plainly, pleadings-wise, P required leave to amend paragraph 8(t) of the RASoC (and not leave to file a Reply) because she had to assert the relevant material fact as part of her own positive case (rather than as a point raised in reply to Ds’ assertions), failing which it was not something that could be slipped in as part of her positive case without proper pleadings. Moreover, evidence-wise, as explained in paragraphs 21 and 34-36 of the Judgment, the persuasive/legal burden to prove all elements of the Malicious Prosecution Claim fell on P, and on this point about how many times the Noise PCs attended the Pub on 9 November 2006 Ds had discharged their evidential burden by calling the Noise PCs who gave evidence they went there twice, so P (who carried the persuasive/legal burden) had to establish on the totality of the evidence before the court they only went there once and thereby fabricated their evidence. So if P wished to run such argument, then the proposed amendment to paragraph 8(t) of the RASoC would be necessary.

23. Even though Mr Shum left the matter to the discretion of the court, P still had to overcome the hurdles of obvious lateness and potential prejudice to P to persuade this court to smile kindly on her application. As explained above, the application was prodigiously late, and there was no good reason for such lateness. As for potential prejudice, I note that during the trial I overrode Mr Shum’s objection and allowed Mr Leung to cross-examine the Noise PCs on alleged fabrication of their evidence as to the 2^nd Visit on 9 November 2006. Despite the lacuna in the RASoC in the absence of any proposed amendment at that stage, I allowed the matter to be brought up in cross-examination for testing witness credibility/veracity generally given it was a matter raised in the Noise Trial. This was, of course, a far cry from P being entitled to rely on such fact/matter as material basis for the Malicious Prosecution Claim. But that said, given the opportunities for the Noise PCs to address P’s allegation under cross-examination and re-examination on the subject, and in the absence of any criticism by Mr Leung that Ds failed to call further witness evidence in response (eg police officers from the Control Centre or KCRC Console) which he could hardly suggest in view of the lateness of the application and which gave Mr Shum comfort that Ds did not have to marshal any other evidence to address the new plea, I am persuaded Ds did not suffer such irreparable prejudice that I should disallow the proposed amendment albeit the lateness.

24. In the circumstances, I allow the proposed amendment to paragraph 8(t) of the RASoC. But it must be made clear that in allowing such late amendment it did not mean P’s assertions so introduced were therefore meritorious and/or credible. Such assertions must be considered against the totality of the evidence, P’s previous pleadings in the RASoC, and the lateness of their introduction. This has been discussed in the Judgment.

IV. CONCLUSION

25. In the circumstances, I grant the following order:

(a) leave be granted to P amend the RASoC in the manner marked in purple in paragraph 8(t) of the draft annexed to the Amendment Summons;

(b) for the avoidance of doubt, the proposed amendment in the manner marked in purple in paragraph 10 in the draft annexed to the Amendment Summons is disallowed;

(c) P shall file and serve Re-Re-Amended SoC within 7 days from today.

26. By the Amendment Summons, P sought indulgence from the court. I therefore grant a costs order nisi that P do pay Ds costs of the Amendment Summons to be taxed if not agreed, and P’s own costs to be taxed in accordance with Legal Aid Regulations.