HAHN-SHIN, MICHELINE SUCK-HI v. GOVERNMENT COUNSEL, MS. MICHELLE SOONG

HCA 2242/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2242 OF 2008

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J U D G M E N T

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1.  This is an application to strike out the claim under various limbs of Order 18, rule 19 of the Rules of the High Court.

Background

2.  The bailiff has allegedly seized all items of possession from the Plaintiff except some clothes and bedding mattress pursuant to a writ of fieri facias.  The items were eventually sold.  The Plaintiff sued “The Government of Hong Kong Special Administrative Region Bailiff [Operation Section]” in HCA 1499 of 2006 for damages suffered as a result of the wrongful sale of her items at a gross undervalue.  Her action was struck out, which decision was upheld by the Court of Appeal: CACV 62 of 2007.  In that action, Ms. Soong acted for the defendant.

3.  About a year later, the Plaintiff instituted the present action against Ms. Soong.  In summary, the Plaintiff claimed that the former Registrar Mr. C. Chan had given directions for the parties in HCA 1499/2006 to file affidavit evidence.  However, allegedly, relying on Ms. Soong’s words “not to file”, the Plaintiff had failed to file evidence which eventually led to dismissal of HCA 1499 of 2006.  Ms. Soong now seeks to strike out the present action.

4.  Neither party has filed any affidavit evidence save that the Plaintiff has lodged a statement dated 11 December 2008 “on the whole of story”.  For present purposes I accept the statement as part of her evidence.  She has also addressed me orally and her submission is mixed up with factual assertions, her own observations and arguments.

The Law

5.  In law, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process, or in regard to any other step in the proceedings.  Neither does a litigant have a duty to “correct” his opponent’s mistakes.  The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.  See Business Computers International Ltd v. Registrar of Companies [1988] Ch 229, followed in Hong Kong in Wong Yu Cho Rolly trading as Marco Polo and China Oversea Technical Development v. Louie Wong & another, DCCJ 2805, 2806 and 2930 of 2007.

Application of the Law

6. As in HCA 1499 of 2006, the Plaintiff still directed her arguments to the manner in which the writ of fi fa was executed, the number of items seized, the value of the items seized and their sale at a gross value.  [See paragraph 27 of CACV 62 of 2007.]  These are quite irrelevant to the Defendant’s application to strike out, which turns on legal arguments only.  Even if the Plaintiff can come up to proof on her version of facts, it is plain and obvious that there is no reasonable cause of action against Ms. Soong.  The statement of claim ought to be struck and I limit myself to doing so only under the first limb of Order 18, rule 19.  The pleadings are not capable of amendment.  The claim should be dismissed.

Costs

7.  Since the Defendant has succeeded, I order, on a nisi basis that costs of the action, including this application for striking out should be paid by the Plaintiff to the Defendant.  It is appropriate to order costs on a gross sum basis.  I have examined the costs statement presented by Mr. Leung to me at the last hearing.  The action is simple and is struck out at an early stage.  It can be handled by a junior government counsel.  Notwithstanding his competence, Mr. Leung has asked for only an hourly rate of $3,500.  It is a generous rate for government counsel of over 12 years’ standing.

8.  The time spent on this case was nowhere excessive.  There was no unnecessary expenses.  The 1^st call over hearing lasted for about 15 minutes and the 2^nd hearing before me took about 1-½ hours.  Overall, the costs claimed in the sum of $15,000 was reasonable and I am minded to allow them in full.

Conclusion

9.  I order that:

(i)  The statement of claim be struck out and the action be dismissed under Order 18, rule 19(1)(a) of the Rules of the High Court.

(ii)  On a nisi basis, the Plaintiff should pay costs to the Defendant assessed on a gross sum basis at $15,000.  This order on costs will become absolute unless either party applies for variation by summons to me within 14 days of the handing down of this judgment.