CHENG WAI LUN WILLIAM v. ARCHERY ASSOCIATION OF HONG KONG, CHINA

HCMP 395/2025 [2025] HKCFI 5524

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 395 OF 2025

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DECISION

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I.  INTRODUCTION

1.  The Plaintiff commenced the present proceedings by Originating Summons filed on 13 March 2025 (the “Originating Summons”)  against the Defendant in respect of disciplinary proceedings and the consequential three-year sanction of suspension of membership against the Plaintiff.  This is the first hearing.  The parties have filed affirmations, and at this first hearing, the dispute between the parties is whether I should order cross-examination on the affirmations.

II.  BACKGROUND

2.  The Defendant was incorporated in 2007 as a company limited by guarantee in Hong Kong.  It is the local governing body of the sport of archery.  It is a member of the Sports Federation & Olympic Committee of Hong Kong, China.

3.  There are three types of the Defendant’s membership:-

(1)  Club membership;

(2)  Individual membership; and

(3)  Honorary membership.

4.  The Plaintiff has been its individual member since 2007, and has been registered as a coach and a judge with the Defendant since 2009 and 2010 respectively.

5.  Under article 13 of the Articles of Association of the Defendant, there shall be an Executive Committee for the management of the affairs of the Defendant.  By article 51, the Executive Committee shall have the full power to make rules and bye-laws for “the good conduct” of its members and in relation to the Defendant’s affairs and for “good conduct and discipline of all persons (whether members of the [Defendant] or not)  taking part in any of the activities of the [Defendant] or in any activities with which the [Defendant] may be associated”.  The bye-laws provides that a Disciplinary Sub-committee is formed.

6.  There are no rules provided for the procedures of disciplinary proceedings, but the procedures have been set out by a two-page Chinese flowchart (the “Flowchart”), the details of which I need not set out here for the present purpose.  I only need to mention that after the Disciplinary Sub-committee conducts disciplinary hearings and adjudicates upon the complaint in question, it shall report the results to the Executive Committee, which will endorse or disapprove the decisions made by the Disciplinary Sub-committee. 

7.  On 24 April 2024, the Defendant received a written complaint (the “Complaint”)  about the Plaintiff’s conduct.  On 26 June 2024, the Plaintiff wrote a reply.  On 9 July 2024, the Defendant informed the Plaintiff that a disciplinary hearing would take place on 16 July 2024.  In reply, the Plaintiff told the Defendant that he was not available to attend the hearing.  On 12 July 2024, the Defendant informed the Plaintiff that the hearing would proceed ahead in his absence.  The Plaintiff did not attend the hearing, and the hearing proceeded in his absence.  Live evidence was heard. The Disciplinary Sub-committee found that the Plaintiff had committed three sets of misconduct, and proceeded to give sentence, namely, suspension of his membership for one year for the first misconduct, suspension of his membership for three years for the second misconduct and a reprimand for the third misconduct.

8.  On 20 July 2024, the Defendant informed the Plaintiff of the decision made by the Disciplinary Sub-committee (the “Disciplinary Sub-committee’s Decision”), and informed the Plaintiff that the Executive Committee would meet and consider the Disciplinary Sub-committee’s Decision.

9.  The Plaintiff attended the meeting of the Executive Committee on 16 September 2024 without legal representatives, and made representations himself in the meeting.  There is dispute over whether he had the right to have his lawyers, but this is not an issue that concerns me for the present purpose.  The long and short is that the Executive Committee resolved to approve the Disciplinary Sub-committee’s Decision. 

10.  As a result, the Plaintiff’s membership has since been suspended and cannot take up the job as a coach.

III.  THE PLAINTIFF’S CLAIM

11.  The Plaintiff’s claim is mainly that there was breach of natural justice in the disciplinary proceedings and the Disciplinary Sub-committee’s Decision and the Executive Committee’s approval were not made in good faith.  While it will be seen at the substantive hearing how breach of natural justice could arise in the present context, and if it could, what the standard of the natural justice should be, I hasten to point out that the present proceedings are not a judicial review.  I also note that in the margin note of the Originating Summons, in the affirmations and in the submissions (except the oral submissions made by the Plaintiff’s counsel with additional authorities submitted during the hearing), no rules or other legal basis, express, implied or otherwise, are stated for the Plaintiff’s claim.

12.  Be that as it may, what is salient here are the questions which the Plaintiff raises and says are questions for cross-examination, which I shall deal with below.

IV.  CROSS-EXAMINATION OF THE PLAINTIFF’S QUESTIONS NECESSARY?

13.  The legal principles in relation to whether to order cross-examination on affirmation evidence in an Originating Summons are trite:-

(1)  Whether to order cross-examination is a case-management decision;

(2)  The burden lies upon the applicant to show that it will be just and convenient to order cross-examination;

(3)  The Court has to consider whether the just, expeditious and economical resolution can best be secured by oral evidence; and

(4)  Where there are genuine, substantial factual disputes that are central to the Court’s determination and cannot be resolved on affirmation, the Court may order cross-examination.

See Re Estate of Chiu Keung [2020] 3 HKLRD 779 at §§58-59 per Chu JA (as she then was); Tierra Trading Limited v Land Base Limited HCMP 3074/2014 at §7 per Recorder Cheng SC.

14.  I add that of course, the Court should also consider the underlying objectives stated in Order 1A of the Rules of the High Court.

15.  The first question the Plaintiff identities for cross-examination is whether the Plaintiff was made aware of the procedure for the disciplinary hearing.  Assuming, without finding, that the standard of natural justice would be akin to that adopted in disciplinary proceedings of professional bodies usually subject to judicial review, I fail to see how the knowledge of the procedure for the disciplinary hearing would be relevant.  It is how the proceedings or the hearing itself were conducted that would determine the natural justice, while I note that it is also the Plaintiff’s own evidence that he was informed that the hearing would proceed in his absence.  If it is said that circulation of the Flowchart had been made in the past, there would be, in the normal course of events, documentary evidence, and if this is a relevant issue, the Court would be able enough to make findings from such evidence or lack of it.  Therefore, I do not see the need for cross-examination on this question.

16.  The second question is whether the Plaintiff was made known and clear about the charges, allegations and/or complaints laid against him. Assuming, without finding, that the standard of natural justice would be akin to that adopted in disciplinary proceedings of professional bodies usually subject to judicial review, in my view, the Court can determine the issue on paper evidence without resort to cross-examination, bearing in mind the usual way to assess the credibility with reference to contemporaneous documents (if any)  and inherent probabilities (for example, is it inherent probable that any circulation of the guidelines or codes of conduct is not evidenced by any documents?)  As to whether the charges against the Plaintiff were made clear, the Court could just examine the documents relating the Complaint to the Plaintiff to determine the issue.  Insofar as there is any allegation that prior to the disciplinary hearing, explanation of the charges was made to the Plaintiff, one would expect that there should be some written record.  If this is a relevant issue, the Court would be able enough to make findings from such evidence or lack of it.  Therefore, I do not see the need for cross-examination on this question.

17.  The third question is whether the Defendant took into account irrelevant considerations during the disciplinary hearing and the meeting of the Executive Committee.   Both the minutes of the Disciplinary hearing and the meeting of the Executive Committee as well as the recordings and the transcripts of relevant part of the meeting of the Executive Committee are in the evidence.  What were considered and what not, and the effect of such consideration, could be determined on such objective evidence, while subjective matters of what the members thought in their mind are irrelevant.  Therefore, I do not see the need for cross-examination on this question.

18.  The fourth question is whether the Plaintiff was made known of the true nature and procedure of the meeting of the Executive Committee on 16 September 2024 and the availability of any appeal mechanism.  The recording and the transcripts of the meeting are in the evidence, and the Court can read them to determine this question objectively.  There is no need for cross-examination on this question.

19.  The last question is concerning the Plaintiff’s right to legal representation.  The dispute was whether prior notice that the Plaintiff would be accompanied by lawyers for the meeting of the Executive Committee on 16 September 2024 was given to the Executive Committee.  It is, put most favourably to the Plaintiff, that the Plaintiff did give such prior notice.  It is not the Plaintiff’s evidence that the Defendant then promised that the lawyers could join the meeting and make representations on behalf of the Plaintiff.  In the circumstances, if the Plaintiff was entitled to legal representations, he would be; but if he was not, whether there was any prior notice or not, without the Defendant’s promise, is irrelevant.

20.  Therefore, there is no need for cross-examination on this question also.

V.  CONCLUSION

21.  In the premises, I refuse leave for cross-examination on affirmations, and shall give directions for the substantive hearing.