WONG WAI KEUNG v. COMMISSIONER OF POLICE

HCMP 1222/2020

[2022] HKCFI 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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D E C I S I O N

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1.  It is regrettable that this Court is once again faced with yet another application by the plaintiff for an extension of time, being the eighth application. This time, the plaintiff’s application is for an extension of time to comply with paragraph 11 of the Protocol.

2.  For the purpose of today’s application, the starting point is that on 12 November 2021, the Department of Justice wrote to the plaintiff’s solicitors, Messrs Robertsons, and indicated the LPP claims that are disputed by the defendant, Commissioner of Police (which list is reproduced in schedule A annexed to the Consent Order as defined below).

3.  On 2 December 2021, with full knowledge of the extent of the Commissioner’s dispute, the plaintiff then entered into a consent summons with the Commissioner which enabled the parties to move forward. In particular, the timetable set out under paragraph 2 of the consent summons provides that paragraphs 11 to 14 of the Protocol should be completed by 28 January 2022. Paragraph 15 of the Protocol in turn provides that the extent to which any of the disputed materials as covered by LPP shall be determined by the court on paper following the compliance with paragraph 14. On 8 December 2021, this Court made an order in terms of the consent summons (the “Consent Order”).

4.  On 17 December 2021 ie the very first deadline stipulated in paragraph 2 of the Consent Order, the plaintiff took out the present application for an extension of 21 days to comply with paragraph 11 of the Protocol.

5.  The only explanation given is that the Commissioner “disputes 763 items of my LPP claims in total” and that “in light of the vast number of disputed items and the need for me to specify the special basis or bases and the full factual context upon which I make such claims, I would require more time to prepare my affirmation”.

6.  For the reasons elaborated below, I agree that the plaintiff’s application is wholly unmeritorious.

7.  It is well-established that “as in all applications for time, the court should consider the extent of delay, reasons for delay, the realistic time needed to complete the procedural step, and whether the extension of time would have any impact on any hearing date or milestone date” (see Leader Screws Manufacturing Co Ltd v Huang Shunkui [2021] HKCFI 141, paragraph 7).

8.  First, no proper reason has been advanced by the plaintiff as to the need for extension. On the plaintiff’s own case, the list of objections by the Commissioner were communicated to the plaintiff via the Department of Justice’s letter dated 12 November 2021. Yet there was no request for additional time by the plaintiff. Hence, it lies ill in the plaintiff’s mouth to advance the alleged excuse. If there was indeed any logistical or practical concern, this would have been known to the plaintiff and his legal team well before they entered into the Consent Summons. In the absence of any change of circumstances, it would be wrong for the plaintiff to simply go back on the agreed timeline.

9.  Second, I accept that the above rather demonstrates that any alleged practical difficulties are simply unreal. This is confirmed by (i) the making of an application for extension of time on the very day of the deadline itself; (ii) the failure to explain precisely what the difficulty entails; and (iii) the failure to particularise the actual time required to complete the tasks required under paragraph 11 of the Protocol.

10.  Third, as mentioned above, the timetable set out under paragraph 2 of the Consent Order provides that paragraphs 11 to 14 of the Protocol should be completed by 28 January 2022. The underlying fraud trial (in DCCC 349/2021) is due to commence in the District Court on 14 March 2022. In other words, the current timetable was drawn up (by consent of the parties and with the approval of the court) such that there will be roughly 6 weeks for the Court’s determination of the plaintiff’s LPP claims and the Police’s follow-up investigations and actions in case such claims or some of them are determined against the plaintiff (ie from 28 January 2022 to 13 March 2022).

11.  This is already an extremely tight timetable. Any further delay by the parties in complying with the Protocol will defeat the whole purpose of the Protocol and the search in question.

12.  This Court has already seen fit back in October 2021 to make “an unless order [which] is necessary to ensure the proper conduct of these proceedings and instill a necessary sense of discipline in the plaintiff’s compliance of court orders”. Unfortunately, the Court’s warning has fallen on deaf ears. Accordingly, it is appropriate for an unless order to be imposed in the following terms:

“Unless by 4:30 pm on 29 December 2021 the plaintiff do comply with paragraph 11 of Annex 1 of the Order of the Honourable Mr Justice Wilson Chan dated 19 November 2020 as varied by Order dated 26 February 2021 and paragraph 2 of the Order of the Honourable Mr Justice Wilson Chan dated 7 December 2021:

(a) the plaintiff’s LPP claims to the extent that they are disputed by the defendant (ie as identified at Schedule (A) of the Consent Order) shall be dismissed; and

(b) the defendant shall be at liberty to inspect, extract and/or otherwise access or use for investigation such materials.”

13.  I shall further give the following directions as a result of the changes to the timetable brought about by the plaintiff’s application:

(1)  The time for the defendant to comply with paragraph 12 of the Protocol be extended to 12 January 2022.

(2)  Unless by 4:30 pm on 21 January 2022 the plaintiff do comply with paragraph 13 of the Protocol, the plaintiff be debarred from filing any affidavit evidence and written submissions in reply pursuant to paragraph 13 of the Protocol.

(3)  For the avoidance of doubt, the time for the parties to comply with paragraph 14 of the Protocol to remain at 28 January 2022.

(4)  Any further application by the plaintiff for an extension of time to comply with the Protocol shall be taken out not less than 5 days prior to the deadline in question, which should be supported by affidavit evidence and a written submissions (of no more than 4 pages).

14.  I shall now hear the parties on the question of costs.

(Discussion re costs)

15.  As I have mentioned in the Decision, the plaintiff’s application is wholly unmeritorious. In short, the plaintiff has failed to put forward any good reason for seeking to go back on the agreed timetable, which was arrived at with the consent of the parties and the approval of the Court.

16.  In presenting a fait accompli to the court (by taking out the time application on the very day the deadline was to expire), the litigation conduct of the plaintiff is reprehensible and it is appropriate that the plaintiff should be visited with a costs order to be taxed on the “indemnity basis”.

17.  Accordingly, I order that the costs of the application be paid by the plaintiff to the defendant forthwith, such costs are to be taxed on the indemnity basis if not agreed.