XCHRX WONG WAI KUEN v. CHU'S MAGIC CO. LTD.

DCCJ19263/1993

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 19263 OF 1993

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Reasons for Decision

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1. This is an application for leave to appeal against my decision handed down on 4th June 2001 dismissing the action for want of prosecution. At the hearing of the application, I refused leave for reasons to be handed down in writing. These are my reasons.

2. The grounds and arguments for appeal are set out in a 17 page Skeleton Argument of the Plaintiff dated 19th July 2001. At the outset of the hearing for leave to appeal, Mr. To pointed out that the dismissal for want of prosecution was an exercise of judicial discretion. Mr. To then proceeded to rehearse the facts and circumstances of the case. As this was a clear attempt to have a second bite at the cherry, putting forward arguments that, if not already canvassed at the original hearing of the application to dismiss for want of prosecution, should have been tendered then, I stopped Mr. To short. I told him that he needed not recite what was in his long Skeleton Argument for I have read it. I further told Mr. To that it is trite law that on matters for judicial discretion, different judges may come to opposite conclusions on the same set of factors and circumstances presented and yet neither should be overturned on appeal. Mr. To was not pleased at all. I still have the nagging suspicion that he, after sitting down, tried to express his discontent through coughing and shuffling papers noisily whilst the hearing was still in progress.

3. With the proposed grounds of appeal, Mr. To seems to think that the decision to dismiss the action was based on two grounds :- (1) that there was inordinate and inexcusable delay and (2) that the Plaintiff's action was doomed to fail. This is a misunderstanding, if not a distortion, of the basis of my decision. The approach I adopted is self-evident in the judgment handed down on 4th June 2001. First, I considered whether there was inordinate and inexcusable delay. The complaint of delay analyzed in Paragraph 7 of the judgment was accepted. Next, having regard to the causes of delay and the case of LEE Pui-kuen, I concluded that the delay was inordinate and inexcusable.

4. Then I considered whether there was such prejudice as to justify dismissal for want of prosecution. I found prejudice as explained in Paragraph 16 of the judgment. Mr. To, in the Skeleton Argument, attacked me for being self-contradictory. He said that since I had emphasized that the Plaintiff's claim was rather simple, I was not entitled to be concerned with witnesses losing memory. There is, of course, no self-contradiction. The cause for concern over witnesses losing memory is clearly stated in the last four sentences of Paragraph 16 of my judgment. It is true that in my view there were only a few crucial documents that would determine the action. It is precisely because of this apparent simplicity, that my judgment went on to say in Paragraph 16 :-

"It is to be expected that counsel for the Plaintiff will subject Mr. Chu to lengthy and rigorous cross-examination on many matters directly concerning the letters and indirectly affecting credibility. The same will be done to the Plaintiff by counsel for the Defendant. After a lapse of ten years, it is quite likely that memory of matters may well have faded or become unreliable even though witnesses may pretend to remember this or that. In the circumstances, I am satisfied that a fair trial in this case will be very difficult to obtain." (Emphasis added)

The anticipation of detailed and wide-ranging cross-examination was not just my imagination. It was part of the submission by Mr. Ho for the Defendant during the hearing of the application to dismiss for want of prosecution. Mr. To was not present at that hearing, but he must have read my judgment. Even if he undertakes on behalf of the Plaintiff not to cross-examine generally on credibility, counsel for the Defendant is entitled to do his duty.

5. Ironically, at the hearing for leave to appeal and in his Skeleton Argument, Mr. To suggested that the court has not been supplied with the full sets of papers such as witness statements. If Mr. To takes the position that the action is far more complicated, then the risks of loss of memory for witness are all the more higher and the prejudice greater. If Mr. To admits that his side did not produce all the relevant documents for the court's consideration then, too bad, it is too late and his firm has to answer to the Plaintiff.

6. Having found that there was inordinate and inexcusable delay leading to prejudice, I next went on to consider particular features in the case to see if the Plaintiff may be allowed to proceed despite the delay and prejudice. Consideration of the merits of the action may bring result in favour of the Plaintiff for if the court can see clear merits in the Plaintiff's claim, the court should be slow to shut the doors of justice. But it does not follow that where the court found that the Plaintiff's action is doomed to fail the decision to dismiss the action was based on lack of merits in the Plaintiff's claim. The action, as stated in the judgment clearly, was dismissed for want of prosecution. In fact, as a matter of principle, even if the Plaintiff's claim has clear merits, the court still has the discretion to dismiss the action for want of prosecution. As Mr. Ho for the Defendant submitted in his Skeleton Argument, if as Mr. To contended, the merits of the action is irrelevant, even though the judge digressed into the merits there can be no harm to the Plaintiff's case because there are already other materials that meet the criteria for dismissal for want of prosecution. If Mr. To argues that the merits in the action is irrelevant then I do not understand why he felt it appropriate to bring up the evidence and arguments over the merits of the action in the Skeleton Argument.

7. So, even if his understanding of Birkett v. James is correct so that I should not have considered the merits of the action, Mr. To cannot avoid the finding of inordinate and inexcusable delay and prejudice justifying dismissal for want of prosecution. That is the angle which Mr. To does not seem to appreciate. By concluding that the Plaintiff's claim had little chance of success, the court went beyond the call of duty (so Mr. To bitterly complained) and effectively tucked in all the loose ends and disposed of all issues. There would be little prospects of the Plaintiff claiming against solicitors for negligence. Now, since Mr. To wishes to boast of his client's prospects of success and yet he has not been able to get out of the quandary caused by his firm's delay, all is not lost for his client after all.

8. Under a separate heading of Fair Trial, Mr. To argued once more that a fair trial can be held which is in effect saying that there is no prejudice. I have dealt with this aspect in my judgment handed down on 4th June 2001 and hereinbefore. I am not going to repeat myself again.

9. Mr. To further attacked my decision under two more headings - Delay on the Part of the Defendant and Estoppel. Whether there was delay is a judgment of fact and standard that is not generally open to appeal. As to estoppel, at the hearing on 25th May 2001 counsel for the Plaintiff did argue that the Defendant was estopped from applying for dismissal for want of prosecution. And counsel for the Defendant, out of abundance of caution, replied. I did not even mention estoppel in my judgment for the simple reason that estoppel does not apply. I could have stated, at the expense of counsel's reputation, that time was wasted on nebulous issues. Now that Mr. To seeks to rely again on estoppel, he is invited to study the authority cited by Mr. Ho for the Defendant :-

"I therefore reach the conclusion that Lyell's case [1991] 1 WLR 683 should be overruled. Where a plaintiff has been guilty of inordinate and inexcusable delay which has prejudiced the defendant, subsequent conduct by the defendant which induces the plaintiff to incur further expense in pursuing the action does not, in law constitute an absolute bar preventing the defendant from obtaining a striking-out order. Such conduct of the defendant is of course, a relevant factor to be taken account by the judge in exercising his discretion whether or not to strike out the claim, the weight to be attached to such conduct depending upon all the circumstances of the particular case. At one extreme, there will be cases like the present where the defendant's actions are minor (as compared with the inordinate delay by the plaintiff) and cannot have lulled the plaintiff into any major additional expenditure : in such a case a judge exercising his discretion will be likely to attach only slight weight to the defendant's actions. At the other extreme one can conceive of a case where, the plaintiff having been guilty of inordinate delay has for years thereafter continued with the action thereby leading the plaintiff to incur substantial legal costs : in such a case the judge may attach considerable weight to the defendant's activities. But it is for the judge in each case in exercising his discretion to decide what weight to attach in all the circumstances of the case to the defendant's action and I trust that in the future there will be few occasions on which the Court of Appeal will be invited to review this decision on the point."
(Emphasis added by counsel) (per Lord Browne-Wilkinson in Roebuck v. Mungovin [1994] 2 AC 224 at 236-237.)

10. In the premises, none of the so-called grounds of appeal is tenable. Leave to appeal was refused with costs to be taxed if not agreed. Mr. Ho asked for certificate for counsel. Mr. To objected. Seeing that Mr. To himself a seasoned solicitor was clearly unable to handle this application for leave to appeal, representation by counsel was justified. So I certified for counsel. Since the Plaintiff is legally aided, the Plaintiff's own costs should be taxed in accordance with legal aid regulations.