MAN KIN PING t/a KEUNG KEE MEAT v. YUM KOON SHAN

DCCJ 2664/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 2664 OF 2012

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DECISION

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Background

1.  This is a slander action and has been set down for trial commencing on 14 January 2014 with the following day reserved. This is the 2^nd pre-trial review. By summons dated 9 December 2013 (“the Summons”), the plaintiff applies to amend the Statement of Claim. At the conclusion of the hearing, I dismissed the Summons with written reasons to be handed down, which I now do.  

2.  By way of background, the 1^st pre-trial review took place on 20 November 2013. On that occasion, despite the parties’ indication that they were ready for trial, I took the chance to express my grave concern about the state of pleadings of the parties.

3.  The defendant was the ex-employee of the plaintiff and the plaintiff’s complaints pleaded in the Statement of Claim are that after ceasing the employment of the plaintiff, the defendant made false and defamatory complaints to the Labour Department, the Hong Kong Police and the Independent Commission Against Corruption commonly known as the ICAC. By such complaints, the defendant is said to have alleged various misconducts of the plaintiff to the authorities. Eventually none of such complaints were proved against the plaintiff. The Statement of Claim, however, does not set out the precise defamatory words which the plaintiff alleges the defendant has uttered to the authorities at all. 

4.  The plaintiff has filed four witness statements. None of them sheds light on what exactly the defendant had uttered to the authorities. Apart from the plaintiff himself, his three apparently independent witnesses are the proprietor and/or staff members of the supplier and/or customer of his frozen food business. Allegedly the defendant uttered certain defamatory words about the plaintiff and as a result they had a lower regard of the plaintiff’s business.

5.  Mr Ko, counsel for the plaintiff, submitted that the defamatory words contained in such witness statements could be “transferred back” to the Statement of Claim. I could not accept this submission. That is putting the cart before the horse. In a recent decision of the Court of Final Appeal in Kwok Chin Wing v 21 Holdings Limited and Anor., unreported, FACV 9/2012, 30.9.2013, Ma CJ reiterated the importance of pleadings and succinctly stated (at §21) that where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. Further, it is a fundamental requirement of a pleading of a libel action that the precise words allegedly published must be set out clearly: Best v Charter Medical of England Ltd [2001] EWCA Civ 1588. It is not enough to describe their substance, purport or effect: Gatley on Libel and Slander 11^th edn., §28.11.

6.  Moreover, the pleaded case of the plaintiff is that the defendant published defamatory words to the authorities and not to those independent witnesses. I cannot see how the pleading can be saved by reference to the witness statements.

7.  For completeness, I also raised my concern about the integrity of the Amended Defence prepared by the defendant in person.

8.  In the circumstances, I adjourned the 1^st pre-trial review and asked the parties to return to this court today. I expected the parties could put their pleadings in order as soon as possible in the hope that the trial could take place as scheduled.

9.  It was not until 9 December 2013 that the plaintiff took out the Summons. Mr Ko explained to this court that the draft Amended Statement of Claim (“the Draft”) annexed to the Summons together with a consent summons were actually sent to the defendant’s solicitors on 2 December 2013. Absent consent given by the defendant, the plaintiff could only take out the Summons shortly before the present hearing.

Proposed Amendments

10.  At the outset, it should be noted that the lateness of the application is unsatisfactory, especially when there are new allegations necessitating further discovery. Though the amendment application was somehow prompted by my observations made in the 1^st pre-trial review, I expected that the parties would deal with the matter expeditiously so as not to jeopardise the trial date. The plaintiff could have made the application much earlier on if they had had an adequate sense of urgency.

11.  Mr Chan, counsel for the defendant, informed this court that the defendant opposed the amendment application. Hence this court had to deal with a debate about the proposed amendments, regrettably without any assistance by way of skeleton submissions and provision of relevant authorities.

12.  The correct approach to the question as to whether late amendment applications should be allowed in the wake of the CJR was set out by DHCJ Lok in Li Shiu To v Li Shiu Tsang, unreported, HCA 416/2003, 14.8.2012 (cited by HH Judge Wilson Chan in Park Leung Tai Woon v Leung Tai Sing aka Leung Tai Sing Billy, unreported, 22.4.13) as follows:

16. I agree that the Ketteman principles remain good law after the CRJ, but I must put a caveat here.  First, the new O 1A of the RHC makes it clear that the court shall give effect to the underlying objectives when it exercises its power or interprets the RHC, including increasing cost-effectiveness of litigation, ensuring that a case is dealt with as expeditiously as is reasonably practicable, promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings, facilitating the settlement of disputes and ensuring that the resources of the court are distributed fairly.  If the amendment application is made in circumstances offending these underlying objectives, the court may have to balance all the factors in the case in determining whether to grant the application.

17. Second, there is a heightened concern to guard against late applications after the implementation of the CJR.  For case management purposes, there are now certain milestone dates in the course of litigation, and one of which would be the trial date. If a party makes a late application to amend the pleading with the effect that the trial date may have to be adjourned, the court would be very reluctant in allowing the application unless there are exceptional circumstances.  Indeed, adjournment of the trial is now considered as a serious prejudice to the parties involved in litigations.  Hence, one should not assume that, once the Ketteman principles are satisfied, the court would automatically grant an application for amendment of pleading in particular at a very late stage of the proceedings.

13.  With these principles in mind, I turn to the proposed amendments to the Statement of Claim contained in the Draft. The entire content of the Statement of Claim is sought to be abandoned. In its place, the plaintiff alleges the defendant published defamatory words on four separate occasions not to the authorities but to some other persons. This means that the plaintiff is seeking to move the goalposts, if not starting a different ball game altogether.     

14.  The plaintiff could not possibly rely on the fact that those allegations are already contained in the witness statements filed. The witness statements filed are for the purpose of providing evidence to support the allegations in the pleaded case. The defendant is required to deal with the pleaded case only and not other allegations appearing in the witness statements which are not relevant to the pleaded case. Now the defendant has a wholly new case to meet if the proposed amendments are allowed. It would be most unfair to require the defendant to deal with a new case with the trial is only one month away.

15.  After going through the Draft, for reasons to be given below, I accept Mr Chan’s submission that the parties could not be ready for trial on the scheduled trial date if the proposed amendments were approved. There being no exceptional circumstances, on this ground alone, the Summons should be dismissed.

16.  In the Draft, the plaintiff first alleges that in around July 2011, after the defendant left the employment of the plaintiff company on 2 July 2011, the defendant published to a waitress called 陳玉芳 (“Madam Chan”) the following defamatory words:

“強記肉食公司,公司老板文建平先生無故解僱員工及欠下員工工資”

17.  The plaintiff alleges that these allegedly defamatory words mean and were understood to mean that the plaintiff had dismissed his employee without cause and owed his employee salary, which is a criminal offence punishable by imprisonment under section 63C of the Employment Ordinance, Cap. 57.

18.  First, there is no witness statement made by Madam Chan. Apparently, the plaintiff intends to adduce hearsay evidence only. It is alleged by one of his witnesses called 趙德成 (“Mr Chiu”) that in mid July 2011, Madam Chan told him that the defendant uttered to those words to her on an unknown date. Mr Chiu was the chef and buyer of an eatery called 美璟會, which is the plaintiff’s customer.

19.  There is no explanation given why Madam Chan could not give evidence on behalf of the plaintiff. If this alleged conversation between Madam Chan and the defendant is to be made a subject matter of the plaintiff’s claim, the defendant must be entitled to further particulars of the alleged conversation and carry out an investigation accordingly. If necessary, the defendant may cause Madam Chan to testify for him to disprove this alleged conversation.

20.  Important particulars are presently absent in the Draft in respect of the alleged conversation. The fact that the defendant told Madam Chan that his wage was outstanding does not mean that the plaintiff has contravened any of sections 23, 24 and/or 25 and hence punishable under section 63C of the Employment Ordinance. It depends on when the alleged conversation took place. In passing, I should point out the plaintiff also fails to identify the exact offending section in the Draft and the defendant is entitled to ask for further and better particulars. This will cause delay.

21.  The second complaint is that in August 2011, the defendant told Madam Chan that Mr Chiu was paid by the plaintiff to place orders with the plaintiff. The plaintiff says these words are defamatory because they mean and were understood to mean the plaintiff bribed Mr Chiu.

22.  Again the plaintiff relies on hearsay evidence only. The defendant may make an effort to adduce evidence from Madam Chan to disprove this slander and this takes time.

23.  The third allegation is that in August 2011, the defendant published to one 鄧權新 (“Mr Tang”) the following words:

“強記老板為人不好, 工作超時, 人工少, 糧期不定時,時常責罵他, 使他受委屈, 之後更加在2011年7月2日把他無故解僱了”.

24.  The pleaded defamatory meaning is that “the plaintiff had made his employee worked (sic) over time, paid his staff low salary, did not pay his staff on time, often scold his staff and eventually unreasonably dismissed the defendant on 2 July 2011.”

25.  Lastly, the fourth allegation is that in around July 2011, the defendant published to an unidentified driver of one of the frozen meat stalls certain defamatory words. None of the plaintiff’s witnesses heard the publication in person. The plaintiff only relies on the evidence of one 馬國雄 (“Mr Ma”), who alleges that in July or August 2011 he overheard the conversation between the unidentified driver and another person in which the unidentified driver said the defendant had published certain defamatory words on that date matters about the plaintiff.

26.  In other words, the plaintiff again relies on hearsay evidence to prove this allegation. The defendant is entitled to have further and better particulars of the alleged overheard conversation so as to carry out investigation and amass evidence to disprove the allegation. This must take time.

27.  In regard to damages, the pleaded case of the Draft consists of three heads. Mr Ko submitted that the first two items claimed are special damages. First, the plaintiff alleges that the defamatory statements complained of had caused美璟會 to reduce half of its orders from the plaintiff and so the plaintiff suffered a loss revenue of around HK$12,000 per month. This specific loss is a new claim in the Draft.

28.  The evidential basis of this figure is that the plaintiff avers that美璟會 would normally place orders in the sum of HK$24,000 per month. Mr Chiu alleges that美璟會 after the publication of those alleged defamatory statements reduced the amount of orders with the plaintiff by half.

29.  The trial bundle was not yet available to me. From the present list of documents filed by the plaintiff, it does not appear to contain any accounting documents in support of such an allegation. Mr Ko was unable to identify such documents in the list in any event and submitted that he had not yet perused those documents. It is most likely that further discovery has to be made by the plaintiff to substantiate his claim for damages under this head and if necessary the defendant may need to make an application for specific discovery to resist this claim.

30.  The second head is the plaintiff’s loss suffered as a result of the reduction of orders placed by 駿利貿易公司, which is owned by Mr Ma. Mr Ko submitted that it is a claim for special damages.

31.  This plea is too uncertain and hence objectionable: Collins Stewart Ltd v Financial Times Ltd (No.1) [2004] EWHC 2337. In any event, consequential discovery, albeit not feasible given the imminence of the trial, is warranted: Calvet v Tomkies  [1963] 1 WLR 1397.  

32.  Finally, the plaintiff relies on his acquittal after trial of his criminal charge arising from the complaint of the defendant to the Labour Department. Mr Ko submitted that it is a claim for general damages.

33.  I fail to see how the plaintiff can make such a claim when he does not rely on the complaint lodged by the defendant to the Labour Department to found a cause of action in the Draft.

Conclusion and Orders

34.  For the reasons given, I am of the view that there cannot be a proper and fair trial on the dates fixed and an adjournment of the trial is inevitable if I now allow the new claim introduced by the Draft. I am not persuaded that in all the circumstances of the present case, I should exercise my discretion to allow the proposed amendments and disturb the milestone trial date. Thus, I dismissed the Summons with costs. For taxation purpose, the argument lasted for an hour and I would not grant certificate for counsel for that purpose.

35.  Immediately upon hearing my decision, Mr Ko applied for leave to appeal though I was yet to hand down my reasons. Mr Ko said it was to save the parties’ returning to this court.

36.  Whilst saving costs is always an attractive idea, the intended application without specified grounds could not be a proper one and I refused to entertain the same for the purpose of “going through the motions”. This cannot be right. The plaintiff should only make a formal application for leave to appeal if so advised following the established procedures.