CO, ANA MARIE W. v. JOSE MARIO EMMANUEL VIALIA SALVADOR, ET., AL. AND OTHERS

HCA 917/2019

[2021] HKCFI 3619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 917 OF 2019

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REASONS FOR DECISION

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INTRODUCTION

1.  This was an appeal lodged by the Plaintiff out of time against the decision of Master Kot in striking out the Writ of Summons and the Statement of Claim filed by the Plaintiff on 27 May 2019 (“SOC”) insofar as it relates to the 2^nd and 3^rd Defendants.

2.  At the hearing on 25 November 2021, I dismissed with Plaintiff’s appeal, with costs to be paid by the Plaintiff to the 2^nd and 3^rd Defendants, to be summarily assessed. I indicated that I would give reasons for decision at a later date, which I do now.

BACKGROUND

3.  By the SOC, the Plaintiff seeks damages against inter alia the Department of Justice, the 2^nd Defendant herein, and the Commissioner of Police, the 3^rd Defendant herein, arising out of an investigation of an alleged theft case.

4.  It is the Plaintiff’s case that she was the victim of a theft which took place in 2009, in which the 1^st Defendant stole her ornaments worth approximately US$10 million stored in a safe deposit box with Standard Chartered Bank (“SCB”). The 1^st Defendant was arrested in August 2009. He was subsequently released as the 2^nd Defendant took the view that there was insufficient evidence to charge him for theft.

5.  The Plaintiff has since taken legal action against SCB (HCA 675 of 2012) and also the 1^st Defendant (HCA 492 of 2016).

6.  In June 2016, the 3^rd Defendant destroyed the case documents relating to the alleged theft in accordance with its internal procedures.

7.  The SOC is drafted by the Plaintiff herself. The complaints and allegations, insofar as they can be discerned, are essentially that she should be awarded damages for or in relation to:

a.  The 2^nd Defendant’s decision not to charge the 1^st Defendant for the alleged theft (“1^st Allegation”).

b.  The 3^rd Defendant’s decision to close the case, terminate the investigation and destroy the case documents (“2^nd Allegation”).

c.  Infringement of copyright allegedly owned by the Plaintiff in relation to various documents, etc. related to the investigation (“Case Documents”) (“3^rd Allegation”).

8.  On 14 August 2019, the 2^nd and 3^rd Defendants took out a summons to strike out the Writ and SOC insofar as it relates to them on the ground that it discloses no reasonable cause of action (“the Strike Out Summons”).

9.  The striking out application was heard before Master Kot who, on 28 July 2020, made the order now the subject of the Plaintiff’s appeal.

10.  The appeal was lodged on 27 September 2021, some 14 months after the decision of the Master.

DISCUSSION

11.  As indicated above, I dismissed the appeal. These are my reasons for doing so.

12.  First, the appeal is lodged out of time (contrary to the requirement in O.58, r.1, RHC). The Plaintiff also acknowledged that it was out of time.

13.  Having taken into account the relevant criteria as to whether an extension of time should be granted for the Plaintiff to appeal out of time (as to which see Astro Nusantara International BV v PT Ayunda Prima Mitra [2018] 21 HKCFAR 118), I decline to grant such extension / leave:

a.  The length of the delay is almost 14 months.

b.  Even taking into account the Plaintiff’s explanations offered at the hearing (viz. she was waiting for the transcript of the hearing before Master Kot – ultimately given in June 2021; and she had applied for legal aid), this remains a lengthy delay. Further, as I explained to the Plaintiff at the hearing, the transcript was largely unnecessary in any event since the hearing before this Court proceeds by way of re-hearing.

c.  The merits of the proposed appeal are weak (as to which, see below).

d.  There are no other reasons going to the overall justice of the case which would affect the exercise of the Court’s discretion.

14.  This basis alone is sufficient to dismiss the appeal.

15.  Secondly, and in any event, as I have indicated above, the merits of the substantive appeal are weak. Briefly:

a.  Neither the 2^nd nor the 3^rd Defendants owe the Plaintiff any duty of care insofar as their respective decisions set out in the 1^st and/or 2^nd Allegations were concerned (on the 2^nd Defendant’s part, the decision not to prosecute; on the 3^rd Defendant’s part, the decision to close the case – see paragraph 7 above) (Hill v CC of West Yorkshire [1989] AC 53; Liu Mei Huei v Government of the HKSAR [2016] 2 HKLRD 249).

b.  There cannot be any copyright owned by the Plaintiff in the Case Documents, which were not produced by her. She had obtained the documents via discovery and those documents were subject to an undertaking not to disclose the same other than for the purpose of criminal proceedings.

16.  At the hearing, the Plaintiff took the point that her claim should subsist because of the procedural rules set out in Order 18, RHC. Her contention was essentially that her claim was valid, all of the Defendants should be required to answer, and it would be impossible (and inequitable) for the claim to proceed without the 2^nd and 3^rd Defendants. This point is premised on a misunderstanding of the procedural rules by the Plaintiff. The 2^nd and 3^rd Defendants have adopted the correct procedure in applying by way of the Strike Out Summons to strike out the claim insofar as it relates to the 2^nd and 3^rd Defendants. Insofar as the Plaintiff wishes to continue the claim against the 1^st Defendant, her entitlement to do so is not affected.

17.  Finally, I note that the Plaintiff had made various complaints that she was not served relevant papers until very close to the hearing date and that she never received the hearing bundle, skeleton submissions, etc. for the purposes of this hearing. I had reviewed the affidavit of service, and also confirmed with the Plaintiff that the address stated therein was the address which she accepted as the one for receiving documents. I had also given her time to review the 2^nd and 3^rd Defendants’ skeleton submissions during the morning by standing the matter down. After such recess, in the course of the hearing, she confirmed that the points made therein were in substance the same as what had been submitted before Master Kot, and that her answers or submissions would similarly be the same as what she had placed into her various affidavits. I thus considered that all relevant materials were before the Court and had been duly considered, and that there was no prejudice to the Plaintiff.

18.  In the circumstances, the appeal is dismissed.

19.  I thank Government Counsel Ms Esther Chan for her assistance.