TSUI KOON WAH v. LAM KING YUEN AND OTHERS

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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REASONS  FOR  DECISION

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Introduction

1.  The summons taken out by the plaintiff on 29 July 2005 sought the following relief:-

(a)	the defendants’ summons taken out on 18 July 2005 be heard by other bilingual judges of the court of first instance;
(b)	leave to the plaintiff to re-re-amend his Reply within 14 days by adding para. 61E to 61H (the draft of which was annexed to the summons).

At the end of the hearing of the application, I dismissed it indicating reasons for doing so would be handed down later.  They are as follows.

The Application To Recuse

2.  This refers to the application set out in para. 1(a) above.  According to the plaintiff, it was brought on the basis of two matters:-

(a)	the remark I made in para. 48 of the judgment handed down herein on 29 January 2005 (“the said judgment”);
(b)	the remarks I made during the pre-trial review on 21 February 2005 which were related to para. 48 of the said judgment and to the state of the plaintiff’s pleadings.

Before turning to the merits of this application, the nature of, and the relevant parts of the history of proceedings in, this action need to be briefly mentioned.

3.  This action was commenced in March 2003.  The plaintiff alleges in the statement of claim (by now in its re-re-amended version) that the defendants defamed him.  The defendants deny the claim.  The lines of defence raised are (a) a denial of any defamatory meaning, (b) justification and (c) publication on occasions of qualified privilege.  The Reply (now in its re-amended version) pleads (among other things) malice and misuse of the privilege.

4.  The said judgment concerned the plaintiff’s earlier applications (one taken out on 25 October 2004 and the other on 29 December 2004) to amend his pleadings.  They were first adjourned to the pre-trial review heard on 30 November 2004, and later further adjourned to a full hearing on 3 January 2005.  The plaintiff was partly successive as regards the October 2004 summons in obtaining leave to amend some parts of his pleadings.  The December 2004 summons was dismissed.

5.  The remark appearing in para. 48 of the said judgment reads:-

“Another matter which may warrant further examination is the state of the plaintiff’s pleadings.  This, however, is more properly a matter for the parties to consider.  I will therefore not elaborate on this subject”.

6.  I pause to note that these remarks were made in relation to pleadings which, on the plaintiff’s appeal against the said judgment, the court of appeal said were “long” and “prolix”.

7.  Before turning to the merits of this application, several general legal propositions have to be stated.

8.  First, in most cases, pleadings are important to civil litigation because, at the end, they define the extent of dispute and the ambit of the investigation needed to resolve the dispute: see Hong Kong Civil Procedure 2004, para. 18/0/2 and 18/12/1.

9.  Rules of the High Court prescribe how litigants should plead their respective case: see, for example, Ord. 18 r. 6 (formal requirements), r. 7 (only materials facts and not evidence should be pleaded), r. 8 (matters which must be specifically pleaded), r. 10 (consistent pleas) and r. 12 (necessary particulars).

10.  Apart from the rules, the court has an inherent jurisdiction to prevent all proceedings which are obviously frivolous or vexatious.  Here I need do no more than quote from the decision of A Cheung J in Ng Yat Chi and Another v. China Resources (Holdings) Co. Ltd. and Others HCA 424/2005 (12 August 2005) where the learned judge reviewed comprehensively the relevant authorities and principles:-

“Order 18 rule 19(1),the Rules of the High Court (Cap. 4), providing for the court’s power under the statutory rules to strike out pleadings and indorsements, does not specifically require the application of a party as a pre-condition to the court’s exercise of its power.  Rather it provides that the court “may at any stage of the proceedings order to be struck out” any pleadings based on the usual grounds … and order the stay or dismissal of the action.

Moreover, apart from the statutory power to strike out, there is also the parallel power under the inherent jurisdiction of the court to strike out or stay proceedings before it, which are obviously frivolous or vexatious, or are otherwise an abuse of process of the court.  In fact, the power to make a restricted application order or a restricted proceedings order stems from the same inherent jurisdiction of the court to protect its own process from abuses.

Further, whether under the statutory power or the inherent jurisdiction to strike out, the court may consider exercising its power on its own motion, even in the absence of any application.

The position has also been explained by Hong Kong Civil Procedure 2004, vol. 1, para. 18/19/12, which points out that from time to time such power to strike out has been exercised by the court in personal injuries cases of its own motion:

“The current personal injuries Judge, Seagroatt J considers that this is a much misunderstood provision and is often overlooked in practice. In personal injury actions, particularly running down and employer’s liability actions, many accidents are so self-evidently the consequence of negligence on the part of the defendant that no sensible defence can be maintained. Where there is no plea of contributory negligence, or no evidence of it, or where such a contention is manifestly contrary to common sense and known principles of law, the court has power to strike out the defence and enter judgment accordingly, even in the absence of a specific application by the plaintiff. Further the inherent jurisdiction of the court enables it to make decisions for the economic, expeditious and just disposal of actions. Spurious defences such as tactical or holding defences, are regarded as wasting costs, causing the parties to prepare cases on liability where there can be no such issue. This involves use of court time and resources as well as the use of public funds and resources in cases where the Legal Aid Department, Department of Justice, Labour Department and Police Force are concerned.”

See also Lam Kai v. Official Receiver, HCMP 3905/1999, Rogers JA (26 July 1999), para. 11.

“Nor are these instances limited to personal injuries cases.  My own limited research reveals that in CS Low Investment Ltd. v. Freshfields [1991] 1 HKLR 12, a professional negligence case, the Court of Appeal of its own motion struck out the entire statement of claim as being “incurably bad”, even though the application to strike out taken out by the defendant, which led to the appeal, was restricted to certain parts of the pleading only.  The court, citing Huntly v. Gaskell [1905] 2 Ch. 656, emphasised that it had inherent jurisdiction to strike out the pleading of its own motion (at pp. 26H/I and 27B).  Fuad VP said that the court “cannot allow the machinery of the court to be used as a means of vexatious oppression” (at p. 26H/I).  He went on to say that the proceedings in that case “should never have been launched and … [they had] been allowed to remain alive for too long as it [was]” (p. 26H/I).

In Dragages et Travaux Publics v. Hong Kong Housing Authority, Civ. App. No. 87 of 1984 (7 June 1984), the Court of Appeal heard an appeal from the refusal of a judge to discharge an ex parte injunction.  Sir Alan Huggins, Ag. CJ with whom Yang and Baker JJA agreed, found that the action could not possibly succeed in face of the evidence filed by the plaintiff and of the court’s own motion struck out the writ.

The court’s power to strike out has been touched on by Ribeiro PJ in paragraphs 55 to 57 of his judgment in Ng Yat Chi (at page 494B to I).  It is true that in paragraph 57 (at page 494H), his Lordship referred to the need for the party being vexed by the abusive proceedings to make an application to strike out and for the court to entertain an inter partes hearing before the abuse can be brought to an end by a strike-out order.  There, I believe his Lordship was focusing on the normal type of situations where the court deals with an application to strike out.  As I have sought to demonstrate above, the power to strike out has been exercised on the court’s own motion, even in the absence of a specific application, provided that a fair opportunity to be heard has been afforded to the party affected.  As has been pointed out by Earl of Selborne LC in Metropolitan Bank v. Pooley (1885) 10 App. Cas.  210, the power to strike out or stay a manifestly vexatious suit which is plainly an abuse of the authority of the court is “inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure” (at page 214).  As the protection of the court’s own procedure and interest is at stake, it seems to me that the exercise of the power to strike out or to stay the abusive proceedings so as to protect the court’s own procedure and interest cannot be dependent upon the making of an application by the opposite party.  The court must have, as part of its inherent jurisdiction to protect itself from the abuse of its own procedure, the power to act on its own motion.  Of course, the power must be exercised carefully and resorted to only in exceptional circumstances where it is a plain and obvious case of abuse.  But that is quite another matter distinct from the one under discussion.

In the court’s combat against abusive proceedings brought by vexatious litigants, not only should the court be flexible in developing remedies which are proportionate to the abuse that has to be dealt with in exercising its statutory and inherent jurisdiction (paragraph 6 of Li CJ’s judgment in Ng Yat Chi at page 482A-C), a fortiori, it should also have no hesitation in putting to best and most efficient use of existing weapons already in its possession to prevent or curb abuses of process.  Amongst others, the statutory and inherent jurisdiction to strike out on the court’s own motion, even in the absence of a specific application, should be resorted to unhesitantly, where appropriate.

Of course, before the court should decide to exercise its power to strike out, a fair opportunity must be given to the potentially affected litigant to be heard.  But subject to that procedural safeguard, I am of the view that the court clearly has the power to strike out a frivolous or vexatious claim or proceedings that are an abuse of the process of the court, on its own motion, and in the absence of a specific application.

That being the case, I fail to see why a designated judge must give leave or permission for an abusive claim to be commenced or proceed, which is caught by the wide formulation in a restricted proceedings order that has its genesis in an attempt to re-litigate an old matter, if the new claim does not involve an attempt to re-litigate but is otherwise abusive.  As a matter of substance, not giving leave/permission is the same as striking out the claim of the court’s own motion” (emphasis supplied) (para. 26 to 35).

11.  I do not necessarily suggest that the plaintiff herein is a vexatious litigant, or that his claim is necessarily frivolous or vexatious.  The purpose of quoting the above passages is to demonstrate that the court has the power to regulate its own procedure (on its own motion) so as to ensure that litigations are disposed of justly but at the same time economically and expeditiously.

12.  This is particularly needed in defamation actions where there is a right to trial by juries: s. 33A, High Court Ordinance (Cap. 4).  The plaintiff has indicated he wishes to have this action tried by jury.  When ordinary citizens perform their civic duties to sit as jurors, they sacrifice their own time to do so.  This necessarily results in disruptions to their daily lives.  Consequently, while recognising the litigants’ statutory right to trials by jury, the court and litigants must ensure trial time is not unnecessarily lengthened.

13.  Further, only admissible evidence can be adduced before a jury.  The ambit of the dispute must therefore be precisely defined to avoid inadmissible evidence being inadvertently shown to jurors.

14.  Moreover, the functions of the judge at trial are different from those of the jury: Gatley on Libel and Slander (2004) 10^th Ed., Ch. 34.  The judge must be able to know what directions (whether regarding points of law or matters of evidence) he needs to give to the jury.  This again requires the pleadings to be clear so that the issues can be easily ascertained.  An example of difficulties arising from a lack of clear pleading in a defamation action can be found in the decision in 匠心髮型 v. The Sun News Ltd. and Another HCA 3236/2002 (29 July 2005), para. 4, 7, 11 to 13, 14 to 17, 19 and 20 to 24.

15.  It is in the light of the above that the remark in para. 48 of the said judgment was made.  This can also serve to put the parties on notice that the court is concerned with the state of the plaintiff’s pleadings.  Procedural fairness is ensured by such prior notice.

16.  The same applies to the remarks made during the pre-trial review on 21 February 2005.  The parties indicated to the listing master as early as in April 2004 this action was ready for trial.  The first pre-trial review was held in November 2004.  There was at one stage a date scheduled for trial of this action (which was vacated).  But, as has been observed at para. 45 to 48 of the said judgment, this action is in fact not ready for trial yet.  The state of the plaintiff’s pleadings is one reason for such conclusion.

17.  In addition, the 21 February 2005 hearing was part of the pre-trial review.  It was an occasion where the court was also exercising its case-management powers.

18.  I do not hold any bias against the plaintiff’s pleadings and the above remarks were not made for that reason.  Insofar as the plaintiff relies on apparent bias arising out of the above remarks, I also find that to have no substance.

19.  The test for determining an application to recuse for apparent bias is succinctly set out in the Court of Final Appeal’s decision in Deacons v. White & Case Limited Liability Partnership and Others [2004] 1 HKLRD 291 at para. 20 and 21.  In short, the test is:-

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased”.

20.  Merely because the court puts the litigants on notice it may exercise its inherent jurisdiction and/or case-management powers cannot be considered to be evidence (or even an indication) of bias.

The Application for Leave

21.  This refers to the application set out in para. 1(b) above.

22.  The defendants object the application on the ground that the proposed amendment is the same as the amendment disallowed by the court of appeal (save some cosmetic difference).  In this connection, the defendant rely on the following passage in the court of appeal judgment dated 18 July 2005:-

“The plaintiff wishes to put in these paragraphs which are expressed to be summaries.  In my view such amendments should not be allowed.  On the face of them they are expressed to be summaries of what has already been pleaded, they simply add to the length of the pleading.  …  In a situation as at present, where the pleadings are prolix, I consider that it would be a wrong to exercise the discretion to permit an amendment which makes the pleadings even longer simply on the basis that it summarises the case which, on the face of it, is already been pleaded” (emphasis supplied) (para. 12).

The above passage was concerned with para. 61E to 61H of the previous draft proposed amendment.

23.  The difference between that draft amendment and the present draft is:-

(a)	the previous draft contains the opening phrase “To summarise”.  This is replaced by “In the course of action of defamation” in the present draft;
(b)	the present draft adds the words “with express malice” at the end of the sentence.

Apart from the above, both drafts are substantially the same and plead that the defendants published the defamation with express malice (various matters are then set out to show malice).

24.  The vice observed by the court of appeal still exists.  Malice has already been pleaded in the re-amended Reply: see, for example, para. 2 (with particulars (a) to (ff) which span over some 10 pages), 3, 4, 5, 12, 19, 20, 26, 29, 31, 36, 46, 47, 48, 56 and 58.  During the hearing, the plaintiff said that some of these averments are not entirely correct.

25.  It should be noted I do not necessarily say that the above quoted averments are properly pleaded.  Moreover, the correct way for a litigant to deal with improper pleadings is to amend them, but not by putting in new paragraphs to the already improper pleadings.

26.  The plaintiff argues that this application was taken out as “instructed” by the court of appeal: para. 6 and 11 of the court of appeal’s judgment dated 18 July 2005 and para. 2 of the judgment dated 29 July 2005.  In essence, the court of appeal only remarked in those paragraphs that, if the plaintiff wishes to put up a proper plea of express malice, this is not affected by the court’s earlier decisions per se.

27.  By reason of the above matters, this application should be refused.