X v. PANG KA WAI AND ANOTHER

HCPI 44/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 44 OF 2017

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D E C I S I O N

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1.  The defendants have each made 3 applications under Order 18 Rule 12 (seeking to adjourn the proceedings pending medical report) (“Adjournment Summonses”), Order 20 Rule 4 (seeking disallowance of the amendment made without leave) (“Disallowing Summonses”) and Order 18 rule 19 (striking out the Statement of Claim and Statement for damages) (“Striking Out Summonses”) respectively.

2.  Although the plaintiff has already amended the writ without leave, she has also, rather redundantly, taken out an application for leave to amend the writ on 28 September 2016.

3.  Thus, there are 7 applications before the Court.

Background of the case

4.  This is a case which has been transferred from the General High Court list to the Personal Injuries list.

5.  The plaintiff, a domestic helper, is claiming for damages arising out of an intentional tort of trespass to the person, alleging that the 1^st defendant has repeatedly indecently assaulted and raped her between around January 2012 and around April 2012, resulting in the plaintiff becoming pregnant and giving birth to a son in November 2012.

6.  The original writ was issued on 9 March 2015 against the 1^st defendant.  The validity of the writ was extended for 3 months to 9 June 2016.

7.  The plaintiff amended the writ without leave to add the 2^nd defendant and filed this on 3 May 2016.

8.  An anonymity order protecting the plaintiff’s and son’s identities was granted on 19 May 2016.

9.  The Amended Writ and other pleadings were served on 8 June 2016.

10.  Both defendants are acting in person.  On 13 June 2016, the Court received a letter by 1^st defendant seeking to disallow the amendments made without leave.  In a letter dated 25 June 2016, Master K. Lo directed that the application should be taken out by way of summons.

11.  The 1^st defendant took out the Adjournment Summons on 24 June 2016.  Then, on 4 July 2016, after receiving the Master’s directions, the 1^st defendant took out the Disallowing Summons and the 2^nd defendant took out both the Adjournment Summons and Disallowing Summons.  On 16 March 2017, the 1^st and 2^nd defendants further took out the Striking Out Summonses.

Issues in dispute

Adjournment Summonses

12.  Order 18 Rule stated, inter alia :

“(1A) Subject to paragraph (1B), a plaintiff in an action for personal injury shall serve with his statement of claim…a medical report…

(1B) Where the documents…are not served with the Statement of Claim, the Court may…(a) specify the period of time within which they are to be provided; or (b) make any other order as it thinks fit (including an order dispensing with the requirement of paragraph (1A) or staying the proceedings.)”

13.  The defendants submitted that no medical report has been submitted with the Statement of Claim and therefore seek to stay the proceedings.

14.  The counsel for the plaintiff, Mr. Earl Deng, submitted that, upon transfer of the case to the PI list, the medical reports have now been served.  There were A&E records which showed that the plaintiff was pregnant at the relevant time.  The plaintiff has also seen a clinical psychologist and she has produced appointment slips for various consultations.

15.  Mr. Deng argued that, due to the nature of this claim being tort for sexual assault and rape, such medical reports should suffice.  Further, the plaintiff is working as a domestic helper at the moment as well as looking after her son, and it is not easy to make an early appointment for further psychological consultation in the public sector, which may mean that a psychological report would take some time. 

16.  I do accept the special circumstances of this case and I am of the view that the medical reports and documents produced so far would suffice.  I would expect that the court would allow leave for psychiatric expert evidence in the near future so it would be fair and just that I would not order a stay of the proceedings or make any further orders regarding these two summonses.

Disallowing Summonses

17.  The plaintiff has amended the writ before service under Order 20 Rule 1(1) and (3) which did not require leave.

18.  The plaintiff argued that the defendants’ Order 20 Summonses were both late, as Order 20 rule 4 specified that this application should be taken out “within 14 days after the service”.

19.  However, given that the defendants were not legally represented and the 1^st defendant did write to court to attempt to make the application within 5 days of service, and both defendants did not delay making the proper applications after receiving the directions from Master K. Lo, I would not dismiss the summonses for reasons of late application.

20.  The issue before the court is whether the amendment to add the 2^nd defendant was done within the period of time limitation.

21.  Section 35 of the Limitation Ordinance, Cap. 347, states:

“For the purposes of this Ordinance, any new claim made in the course of any action shall be deemed to be a separate action and to have been commenced—

……

(b) in the case of any other new claim, on the same date as the original action.

(2) In this section a new claim means any claim by way of set-off or counterclaim, and any claim involving either—

……

(b) the addition or substitution of a new party,

……..

(3) Except as provided by section 30 or by rules of court, the court shall not allow a new claim within subsection (1)(b), other than an original set-off or counterclaim, to be made in the course of any action after the expiry of any time limit under this Ordinance which would affect a new action to enforce that claim.”

22.  Mr. Deng submitted that the “traditional” position for intentional tort is a 6 year limitation which would mean that the time limitation for the 2^nd defendant has not expired.

23.  However, he also conceded that the “English” position, after A v Hoare [2008] 1 AC 844, was that the limitation would be 3 years and that this was cited in the Hong Kong case of Wang Xi v Lee Pok Hok, Andrew [2012] 1 HKLRD 1134, albeit in orbiter.

24.  I am of the view that this represents the position of the law in Hong Kong now.  The date of the amendment to add the 2^nd defendant as a party was 3 May 2016 which was about 4 years and 1 month after the incident.

25.  Mr. Deng referred to commentaries of O.15, r.6 (3) at p. 342 in Hong Kong Civil Procedure 2018 which seems to suggest that, for situations like this, there is a “two stage test”:

“Where the writ is amended without leave, to add a party under O.20 r.(1)(3), an application by the added party to ceased to be a party will not be allowed unless the court is satisfied that (i) at the date when the amendment was made the relevant period has plainly expired; and it will not be enough for the defendant to show that he has a reasonably arguable case that it has expired; and (ii) that as in the case of a writ, it is very clear that the claim is frivolous, vexatious and an abuse of the process.”

26.  I think this commentary is slightly misleading: it seems to suggest that “an O.18 r.19-like test” be tagged on as a second stage to what should be a straightforward time limitation question.

27.  This commentary refers to a UK Court of Appeal case of Leicester Wholesale Fruit Market Ltd. v Grundy [1990] 1 WLR 107 and it is clear that the “test” is not so.

28.  In the Leicester case, the Court of Appeal approved the decision of the Registrar who applied the test this way:

“In my judgment an application under Ord. 15, r. 6 can only be successful if the question of limitation is unarguable.”

29.  The decision also approved the decision in Ronex Properties Ltd. v John Laing Construction Ltd. [1983] QB 398, and quoted from that case as follows:

“…it is trite law that the English Limitation Acts bar the remedy and not the right; and furthermore, that they do not even have this effect unless and until pleaded. Even when pleaded, they are subject to various exceptions…Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue, or, in a very clear case, he can strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court…”

30.  It is clear that the judge in Ronex did not propose a “two stage test” in such situations.  He was merely saying that the defendant had the option to take out a separate application to strike out the claim if it is “a very clear case”.

31.  Thus the only “test” for whether disallowing an amendment without leave to add a party is whether the question of time barred or not is “unarguable”.  This is also confirmed under the headnote of the case:

“Held…that the test for deciding…whether the pleadings against a defendant should be struck out on the ground that the action against him was statute-barred was whether the case that the action was not statute-barred was unarguable…”

32.  This is logical given that at the stage of amendment of the writ without leave, the writ has not even been served.  So there is no way to know whether the time bar issue will be pleaded at all in the defence.  And even when that is pleaded, options as stated in Ronex will still be open to the defendant, and, of course, the option will also open for the plaintiff to make the appropriate application for the court to exercise its discretion to override the time limitation under section 30 of the Limitation Ordinance.

33.  As such, the threshold for disallowing an amendment without leave to add a party must necessarily be set high: that the court must be sure that the time bar issue is “unarguable” even at such a preliminary stage.

34.  Suffice to say that, given the many “exceptions” to time limitation as mentioned in the Ronex case, I am not convinced that the question of time bar is “unarguable” at this stage.  As such, I would dismiss these summonses.

Striking out Summonses

35.  The defendants, all together, applied to strike out 1) the Statement of Claim dated 15 February 2016, 2) the (Amended) Statement for Claim dated 2 May 2016, 3) the Statement of Damages dated 28 February 2017 and its enclosures, 4) the Statement of Damages dated 1 March 2017 and its enclosures, 5) to dismiss the whole claim.

36.  In the defendants’ supporting Affidavits both dated 16 March 2016, the defendants went through the background of the proceedings and reiterated the arguments based on the lack of medical report.

37.  The precedent quoted by the defendants concerned a medical negligence claim and that the plaintiff there failed to produce an expert report on liability that supported the “Bolam” test.  This is a case concerning tort of negligence, and more importantly, medical negligence.  It is not relevant to the current case.  Other than this, the arguments presented are similar to the ones presented in the Adjournment Summonses which I have dealt with above already.

38.  Besides this, the parties have also made submissions regarding the issue concerning the cause of action against the 2^nd defendant.

39.  Mr. Deng appeared to make submissions under the context of the supposedly “second stage” test in the Disallowing Summonses and not under the Striking Out Summonses, and the defendants did not advance this as a ground of striking out in these Summonses.  Nevertheless, I will deal with it here.

40.  Mr. Deng submitted that the cause of action was based upon the “sufficient close connection” test to establish vicarious liability of the 2^nd defendant as to the actions of the 1^st defendant as set out in Cox v Ministry of Justice [2016] AC 660 and Mohamud v WM Morrison Supermarkets [2016] AC 677.

41.  The defendants argued that such liability should not exist in a domestic situation between a wife and a husband etc.

42.  If this was a ground for the striking out the claim against the 2^nd defendant, I am of the view that it is premature given that Cox and Mohamud are recent advances in the law on vicarious liability.  Further, we are still at a very early stage of the proceedings.  This is clearly an unusual and tragic case with special circumstances regarding the family situations of both parties, and there is potential financial prejudice to the plaintiff if the 2^nd defendant is not joined.

43.  Therefore, I am not convinced, at this stage, that the claim against the 2^nd defendant is scandalous, frivolous, vexatious or otherwise an abuse of the process of the court.  Rather, I agree with Mr. Deng that all such legal and evidential issues should be matters for the court to decide at trial and I am not prepared to deny the plaintiff her day in court.

44.  I will therefore dismiss these two Summonses.

Plaintiff’s Summons

45.  Finally, as stated above, the plaintiff’s Summons dated 28 September 2016 is effectively redundant and is therefore also dismissed.

Order

46.  Accordingly, I will order that the following Summonses be dismissed:

i) The 1^st defendant’s three Summonses respectively dated 24 June 2016, 4 July 2016 and 16 March 2017;

ii) The 2^nd defendant’s two Summonses both dated 4 July 2016 and Summons dated 16 March 2017; and

iii) The plaintiff’s Summons dated 28 September 2016

47.  There be an order nisi for:

i) The costs of and occasioned by the 1^st defendant’s three Summonses (respectively dated 24 June 2016, 4 July 2016 and 16 March 2017) and the 2^nd defendant’s two Summonses both dated 4 July 2016 and Summons dated 16 March 2017 be to the plaintiff to be taxed if not agreed and the Plaintiff’s own costs be taxed in accordance with Legal Aid Regulations with certificate to Counsel; and

ii) No order as to costs for the costs of and occasioned by the plaintiff’s Summons dated 28 September 2016.