POON WONG YEE SEE v. LO SAU WOON DIANA

HCA 1905/2020

[2023] HKCFI 2188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1905 OF 2020

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D E C I S I O N

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1.  This is a defamation case. The hearing before me is the pre-trial review in this case. The following summonses are before me today:

(1)  the plaintiff (“P”)’s summons dated 2 August 2023 (“P’s Amendment Summons”) for leave to amend the Writ of Summons and the Amended Statement of Claim (“the ASOC”);

(2)  P’s summons dated 7 August 2023 (“P’s SWS Summons”) for leave to file and serve her supplemental witness statement in the form of the draft annexed to the summons (“P’s SWS”); and

(3)  the defendant (“D”)’s summons dated 10 August 2023 (“D’s Summons”) for an order to expunge P’s supplemental list of documents filed on 13 July 2023 (“P’s 1^st SLOD”).

2.  The trial will commence on 20 November 2023, with 5 days reserved. Now is about 3 months away from the trial.

3.  In this pre-trial review, P is represented by Mr Kenneth Lam, and D is represented by Mr Earl Deng. Mr Lam and Mr Deng would be the counsel representing P and D respectively in the trial.

BACKGROUND

4.  P & D were and are registered owners of units in a private housing estate on the Hong Kong Island known as Baguio Villa (碧瑤灣) (“BV”). BV has an owners’ corporation (“IO”). The management company of BV is International Property Management Limited (“IPML”).

5.  At all material times, P and D were both unpaid elected members of the management committee of the IO (“the MC”).

6.  On 11 November 2020, P commenced this action against D for defamation. P’s claim is denied by D.

7.  From the very beginning and until now, P is represented by the same law firm (“the Firm”) in these proceedings.

8.  On 11 August 2021, Master SH Lee ordered that, inter alia, the parties do obtain counsel’s advice on the overall merits of the case, and should procure that such advice be ready within 42 days after expiry of such time allowed for exchange of the factual witness statements.

9.  On 26 May 2022, Master David Chan gave leave to the parties to obtain counsel’s further advice, if necessary, within 28 days after filing and service of the Re-Amended Reply.

10.  On 5 January 2023, a solicitors of the Firm, Ms Tamara Liu (“Ms Liu”), on behalf of P signed a Listing Questionnaire (“P’s LQ”) declaring, inter alia, the following:

(1)  P’s pleadings are in order and require no amendment.

(2)  No further interlocutory application will be taken out by P.

(3)  It is appropriate in all the circumstances to set the case down for trial.

(4)  A counsel’s certificate giving time estimates for the trial is attached to P’s LQ.

(5)  Estimated length of the trial is 4 days before a bilingual judge.

11.  A certificate giving time estimates for the trial is attached to P’s LQ. On the face of it, the certificate was signed by “Bowers”. It is not known whether the certificate was signed by the Mr Bowers mentioned below, or not by Mr Bowers himself but by someone having the authority to represent the Firm.

12.  On the same day, D’s solicitors also on behalf of D signed a Listing Questionnaire.

13.  On 12 January 2023, Master Dick Ho granted leave to set this action down for a 5-day trial before a judge sitting alone without a jury.

14.  On 6 April 2023, Master Dick Ho appointed D’s daughter, Ms Yvonne Hung (“Ms Hung”) as D’s guardian ad litem in this case, and the title of this action changed accordingly. The appointment was made because D had suffered a stroke and became a mentally incapacitated person (“MIP”).

15.  In late May and early June 2023, there were discussions between the parties with the purpose of exploring the chance of having a settlement. No agreement has been reached.

16.  By the 4^th Affidavit of Mr Mark Robert Alexander Bedford (“Mr Bedford”, a partner of the Firm), P has produced a copy of the minutes of the MC meeting held on 5 June 2023. According to the minutes, D herself had attended that meeting by zoom. P was not in that meeting, but she was given a copy of the minutes of that meeting by a member of the MC on 16 August 2023.

17.  In response to this point, Mr Deng has told me that Ms Hung is not in Hong Kong at present, and D’s solicitors are only able to take brief instructions from Ms Hung. What Ms Hung can say at the moment is that she arranged D to attend the MC meeting through zoom for a short period of time on 5 June 2023, so that D would have an opportunity to meet her friends in BV. As to whether D has participated in any discussion in the meeting, Ms Hung does not know.

18.  In my view, whether D would now have the necessary mental capacity to give instructions to her solicitors for the purpose of this case is a matter to be further investigated. D’s solicitors should produce a medical report showing D’s current mental capacity to the Court as soon as practicable.

19.  As said, the trial of this action has been scheduled to commence on 20 November 2023, with 21 to 24 November 2023 reserved. There can be no doubt that these trial dates are milestone dates.

THE PRINCIPLES

20.  In Liu Hon Wong and Others v Liu Chee Kwan and Another[1], I have set out some principles concerning interlocutory applications taken out shortly before a pre-trial review (footnotes omitted):

“18. The issues in a trial are defined by pleadings, not by evidence. One cannot slip in an unpleaded issue by saying that there is evidence on the issue. As said by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd:-

‘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 [2005] 2 HKLRD 795, 799 [6(1)]. 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. …… 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.” (Emphasis added)

19. Accordingly, if Ps intend to put forward any claim, Ps must plead the same clearly and unequivocally in their Statement of Claim. Ps cannot say that an unpleaded matter is an issue in these proceedings because there is evidence on that matter. Ds would only be required to meet Ps’ case as pleaded. Ds would not be required to fight against any unpleaded claim.

20. The 3 Summonses are applications taken out by Ps at a very late stage in these proceedings. There can be no doubt that these are last minute pre-trial applications. It is trite that the court may refuse an application by reason of the delay in taking out the application, and the application can be dismissed on the ground of delay alone.

21. In PD 5.2, it is stated:

‘31. The later in time and the closer to a trial date an application is made, the less likely it is for the Court to entertain it.

……

34. A PTR is not an extension of CMC. The Court expects a case to be ready for trial. Late interlocutory applications may be dismissed on the basis of delay alone.’

22. In Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp, A Cheung J (as he then was) made observations on post-CJR considerations. The learned judge said: -

‘4. As Mr Fok pointed out, this delay, viewed in the context of a judicial review application which requires an application for leave to apply for judicial review to be taken out promptly, and in any event within three months from the date when the grounds first appeared, was a lengthy one, and I should immediately add that there is no satisfactory explanation from the applicants regarding the delay.

……

9. Talking about prejudice, I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that is to be paid for by the other side) would mean that there is no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there is no prejudice. The unenviable position that such a party finds himself in is in itself a prejudice.’ (Emphasis added)

23. In Li Xiao Yun v China Gas Holdings Limited, the Court of Appeal dismissed an appeal against the trial judge’s refusal of a last minute pre-trial application to add new defendants and to amend the pleadings on the ground of delay and that the trial date would very likely to be derailed. In that case, Lam JA (as he then was) said: -

‘18. Unmeritorious appeals against case management decisions, at least last minute urgent appeals, are to be deplored since not only are they satellite litigation increasing the costs of the judicial process, they also tend to disrupt the preparation for trial on the part of those representing the opposing party. It is wholly inconsistent with the spirit of the underlying objectives in Order 1A Rule 1 and the duties of the parties and their lawyers under Order 1A Rule 3. Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such application. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs’. (Emphasis added)

24. In Waddington Limited v Chan Chun Hoo Thomas, DHCJ Lok (as he then was) reiterated that late applications could be dismissed on the basis of delay alone. In that case, the learned judge said:-

‘51. In this action, the parties have taken out a lot of late applications shortly before the PTR. This practice is highly unsatisfactory and should be discouraged. Apart from the prejudice likely to be caused to the parties by such late applications including the possible adjournment of the trial, there is serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications. ……

53. Express warning about late applications has already been given in §34 of Practice Direction 5.2, and practitioners should be reminded that late applications may be dismissed on the basis of delay alone. Unless there are exceptional circumstances and there are good reasons for the delay, one should not expect the courts to grant any late applications taken out shortly before the PTR.’ (Emphasis added)

25. In Hongkong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd, Mimmie Chan J said:-

‘1. Nearly 5 years after the implementation of the Civil Justice Reform, parties should be under no doubt by now that the courts will have no hesitation now to reject a late application, made when trial is imminent, for either amendment of pleadings, discovery or the filing of witness statements, which application has the effect of disrupting the preparation for trial with the risk of milestone dates such as a pretrial review or the trial dates themselves being affected. Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted…. The applicant for leave must establish, by affidavit evidence, exceptional circumstances to explain and justify the delay. Change of the legal team has rarely, if ever, been accepted as justification for a last minute change of case or amendment of pleadings, which would result in or necessitate a response from the other side which it cannot in all fairness be expected to do in the availability of time before trial. PD 5.2 makes it clear that change of the legal team will not be treated as exceptional circumstances.’ (Emphasis added)

26. It is no answer to contend that the other party should use the time leading up to trial to meet the new case by filing consequential amendments and further evidence in response. There is no reason to require the innocent party to “squeeze its investigation, preparation and decision‑making processes all into the coming few weeks”.

27. If allowing a last minute pre-trial application would derail the trial dates or prolong the trial beyond the time allocated, the court may refuse leave, even if it means that the applicant would have great difficulty in establishing his case.”

21.  PD5.2, [42] reads as follows:

“Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.” (Emphasis added)

22.  It should always be born in mind that the primary aim in exercising the case management powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.[2]

P’s AMENDMENT SUMMONS

23.  Mr Lam, at [2] of his written submissions dated 16 August 2023, says that all the summonses before the Court today “are the result of what can perhaps be described as a “rescue mission” on the part of P’s newly engaged Counsel to rectify the various defects in P’s case, in an attempt to (1) assist the trial judge; and (2) assist the parties.” Mr Lam unreservedly accepts that P’s applications are late.

24.  Explanations for the delay are offered by Mr Bedford through affidavits. In essence, Mr Bedford’s explanations are as follows:

(1)  When Master SH Lee made his Order on 11 August 2021 and Master David Chan made his Order on 26 May 2022, Mr Kevin Bowers (“Mr Bowers”), had conduct of this action on behalf of P. Mr Bowers is a Solicitor Advocate. When the said orders were made, at that time, Mr Bowers was considering to appear for P at the trial in his capacity as a Solicitor Advocate.

(2)  In May 2022, Mr Bowers expected that this case would be settled. If the matter did go to trial, Mr Bowers would represent P at the trial. With all these in mind, for the purpose of avoiding additional costs, Mr Bowers did not consider it necessary to seek counsel’s advice on the merits of P’s case.

(3)  Mr Bowers also did not think that it would be necessary to amend the ASOC. Therefore, in P’s LQ, it has been stated that P’s pleadings were in order and required no amendment, and no further interlocutory application would be taken out.

(4)  At around the time the matter was set down for trial, in March 2023, Mr Bowers realized that due to the demands of his practice, he would not be able to commit the time necessary to prepare P’s case for trial and he would also not be able to attend the trial on P’s behalf. It was therefore agreed with P that counsel would need to be engaged for the trial.

(5)  At the beginning of June 2023, the Firm engaged Mr Lam as the trial counsel. Pursuant to counsel’s advice, P made the current applications.

25.  With respect, I must say that no good reason has been offered to explain the delay. To put it simply, the reason for the delay is Mr Bowers, the Solicitor Advocate having the conduct of this case on behalf of P from the very beginning, suddenly changed his mind in March 2023. On any view, this cannot be a satisfactory explanation for the lateness of P’s applications. Further, as submitted by Mr Deng, as to why P would need to wait for 3 further months before engaging counsel in June 2023, no explanation has been offered at all.

26.  Mr Lam submits that it is necessary to amend the ASOC, for the ASOC prepared by the Firm is seriously defective. In his written submissions dated 16 August 2023, Mr Lam says:

“8. …… P’s existing and seriously defective ASoC … drafted by solicitors without the assistance of Counsel ……

21. …… prior to June 2023, P’s solicitors had been drafting and handling everything for this case without the assistance or advice of Counsel, believing, honestly but mistakenly, that Counsel’s assistance or advice would be unnecessary …

22. As a direct result of that, court documents filed on behalf of P prior to June 2023 are, as we shall explain here, seriously defective, and need to be rectified immediately.”

27.  With respect, if anything has not been properly done by the Firm, this matter itself cannot be a reason justifying the applications taken out by P at the eleventh hour. If P would suffer any loss and damage as a result of the mishandling of this case by the Firm, P would have the right to commence proceedings against the Firm to seek remedies. D certainly should not be the one paying the price because of the fault of the Firm representing P.

28.  In Mr Lam’s submissions, Mr Lam mentions that Ms Liu, the solicitor signed P’s LQ, is no longer employed by the Firm and is also not in private practice. Mr Lam has made it clear that he mentions this only for the purpose of explaining why there is no affidavit or affirmation from Ms Liu, and there is no allegation against Ms Liu. In my view, it is clear that at the time of P’s LQ, Ms Liu was a solicitor employed by the Firm, and she signed P’s LQ on behalf of the Firm. P’s LQ must be taken as a document signed by the Firm, and the Firm should be responsible for everything declared therein.

29.  By P’s Amendment Summons, P is seeking leave to introduce a new Re-Amended Statement of Claim as per the draft annexed to the summons (“the draft RASOC”), which would entirely replace the current ASOC. The proposed amendments are very substantial. By submitting the draft RASOC, P is now proposing to withdraw some claims in the ASOC. P is also proposing to focus on 4 libels in the trial, and not anything else. As to the proposed withdrawals of some of the claims made in the ASOC, this is not objected by D. As to the proposed introduction of the 3^rd Libel and the 4^th Libel in the draft RASOC, D is prepared to accept the same, provided that these amendments are only reorganization of the matters which are already in the ASOC and nothing new is added to P’s case. Regarding the proposed introduction of the 1^st Libel and the 2^nd Libel, this is objected by D.

30.  The proposed 1^st Libel and the 2^nd Libel as per the draft RASOC are as follows:

“THE 1^ST LIBEL

7. On 10^th June 2020, D published the following words referring to and defamatory of P (“the 1^st Words”) by physically distributing printed copies of the same to 23 people at an IO MC Meeting … (“the 1^st Libel”) ……

THE 2^ND LIBEL

11. On or about June 2020, D procured the publication (“the 2^nd Libel”) of the following words referring to and defamatory of P (“the 2^nd Words”) by physically distributing printed copies of the Words to 23 people at an IO MC Meeting held on June 2020 …… and by orally raising and discussing the Words at that meeting, knowing or having foreseen the 2^nd Words or similar words would then be published as part of the official minutes (in Chinese, and in English) for that meeting (“the IO MC Minutes”), by the IO and/or IPML, who were D’s agents for this purpose, to most if not all owners, residents and visitors of BV, by distributing copies of the same and/or by displaying copies of the same in prominent public places (e.g., in lobbies and on the 1O's website) for at least 7 days, in proper compliance with Cap 344, including its Schedule 2 paragraph 10(4B) ……” (Emphasis added)

31.  The proposed the 1^st Libel and the 2^nd Libel as set out in the draft RASOC are indeed objectionable. The parts highlighted above are new. Bearing in mind that D herself may still be a MIP, and in any event very little time would be available to D before the commencement of the trial, it would not be possible or extremely difficult for D to adduce evidence to meet these new allegations. In my view, it would not be fair to allow P to introduce these new allegations at this very late stage in the proceedings. The proposed 1^st Libel and the 2^nd Libel in the draft RASOC are disallowed.

32.  Regarding the proposed 3^rd Libel and the 4^th Libel, Mr Deng has set out the form of the amendments which would be acceptable by D in his written submissions. Mr Deng’s point is that reorganization of the matters which are already in the ASOC would be acceptable, but P cannot add anything new by introducing the amendments. I agree with Mr Deng.

33.  P’s application for introducing the draft RASOC is not allowed. For the reasons set out in the above, certain parts of the draft RASOC (including the 1^st Libel and the 2^nd Libel) are objectionable and cannot be allowed. I would dismiss P’s Amendment Summons.

34.  Without prejudice to the above, I am of the view that it would be necessary to have a second pre-trial review to further manage this case before the trial. As said in the above, some proposed amendments are not objected by D. I trust that counsel would certainly have some meaningful and constructive discussion, and counsel would jointly put forward an agreed new version of draft Re-Amended Statement of Claim and some agreed directions in due course.

P’s SWS SUMMONS

35.  P’s SWS is prepared on the basis that leave to introduce the draft RASOC is allowed. Since I have refused the application as per P’s Amendment Summons, I would also dismiss P’s SWS Summons.

D’s SUMMONS

36.  Apart from P’s 1^st SLOD filed on 13 July 2023, P has also filed the 2^nd supplemental list of documents on 7 August 2023 (“P’s 2^nd SLOD”). By these two lists of documents, P has disclosed 96 items of documents.

37.  Mr Deng objects to the introduction of these 96 items of documents in this very late stage of the proceedings.

38.  Mr Lam, in his written reply submissions dated 18 August 2023, says that P is only seeking leave to rely upon 11 items as set out in these two supplemental lists of documents (details of the 11 items are set out in [88] of Mr Lam’s written reply submissions), and P would not seek leave to rely upon the other items on the said supplemental lists. Mr Lam submits that the necessity of the 11 items is implied by P’s SWS Summons.

39.  Since I have dismissed P’s SWS Summons, I would not grant leave to P to rely upon the 11 items of the documents. As P is not seeking leave to rely upon the other items on the two supplemental lists, no leave is granted to P to rely upon any items of documents as disclosed in P’s 1^st SLOD and P’s 2^nd SLOD.

DISPOSITION

40.  I dismiss P’s Amendment Summons and P’s SWS Summons. As to D’s Summons, it would be sufficient for me to make an order that P be disallowed to rely upon the documents as disclosed in P’s 1^st SLOD and P’s 2^nd SLOD in the trial without the leave from the Court.

41.  Costs should follow the event. Costs of these summonses be paid by P to D forthwith, and those costs be summarily assessed at HK$250,000.

42.  I thank Mr Lam and Mr Deng for the assistance provided to the Court.