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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J U D G M E N T

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The application

1. This is an application by the defendants herein, by summons dated 14 September 2004, issued pursuant to Order 26 rule 3, to withdraw the interrogatories filed by the plaintiff on 1 September 2004.

2. I understand that this application was not fixed before a Master, as would have been the case in normal course, because this action already has been set down for trial, with a trial date of 3 January 2005, with five days reserved.

The background

3. On any basis this would be an unusual application in terms of its timing, given the imminence of the trial itself.  Accordingly, it may assist to sketch in a little of the background.

4. This is a defamation case, which has its origin in the employment, by the Government, of Mr Tsui, the plaintiff, as a Contract Social Security Assistant at the Mongkok Field Unit.

5. Mr Tsui commenced work at this Unit on 21 May 2002, and his contract was to run until 31 March 2003.  However, he was dismissed from this employment on 3 January 2003 absent payment in lieu of notice or accumulated annual leave.

6. To put the matter as neutrally as possible, it is fair to say that Mr Tsui did not enjoy a harmonious working relationship with employees of this Field Unit, and a number of ‘incidents’ arose, resulting in accusation and counter-accusation.

7. In the event, Mr Tsui was summarily dismissed from his employment, and it is this dismissal which has led to his mounting two actions in the High Court : first, the existing action against four members of staff, wherein he seeks damages for defamatory statements he alleges were made against him, and second, a suit against the Government for wrongful dismissal, which I am told is HCA 2938 of 2003.  Mr Tsui has told the court that he recognizes the risk of adverse costs orders which may be made against him in such litigation, but that he anticipates possible bankruptcy as “a reality, not a strategy”.

8. As earlier noted, the present action, the ‘defamation action’, is due to come to trial at the beginning of January 2005, and a PTR is scheduled for 30 November 2004.  I am told that the reason that these two actions have not been the subject of an order that they be consolidated or otherwise heard together is that Mr Tsui wishes the defamation proceedings to be heard before a jury, and that a Master has made an order to this effect.

9. Within the present action this in fact is the second application by Mr Tsui for interrogatories.  Mr Cheung, who appears today for the defendants, told the court that the first application for such relief was made on 4 December 2003, wherein the defendants were confronted with a request consisting of approximately 100 questions.  A genuine attempt then was made to respond to these questions, but the plaintiff was unsatisfied, and took out an application that further answers be provided.  The hearing of this application took place on 7 May 2004, before Master Hui, who dismissed 52 out of the 54 questions remaining extant.

10. The current application poses another 35 interrogatories, although as Mr Cheung has noted, the subdivisions involved result in this being, in substance, a request in terms of significant more than that, give that many of the questions are to be answered by more than one party.

The argument

11. Each side has put in a lengthy skeleton argument, the existence of which has assisted the court, and has served the purpose of minimizing the time required for oral argument.  Neither Mr Cheung, nor Mr Tsui, wished to elaborate upon that which had been presented in written form, although Mr Tsui did wish to stress that he currently was in receipt of social security assistance, and that he hoped that the defendants would answer these further interrogatories, since this would minimize the number of witness subpoenas that he might need to issue for trial; each such summons required a deposit of $500.00, and given that he was contemplating issuing subpoenas for some 30 witnesses he felt that this was an expense that he could ill afford.

12. For his part, Mr Cheung for the defendants took firm issue with this latest request, which was characterized as oppressive, irrelevant and unnecessary to the disposition of the issues in the case.  He also asserted that the detailed information requested could as easily be obtained from the defendants in cross-examination, and that no proper basis had been made out for the grant of this request.

13. Mr Tsui, in his skeleton submission, stated that he withdrew 6 of the interrogatories initially so requested, namely numbers 15, 19, 20, 25, 33 and 42, and asserted that the majority of the remaining 29 are susceptible to ‘Yes/No’ responses.  His is a long skeleton argument, redolent with detail, which I have read and reflected upon within the context of the pleaded issues in this case, and in light of Mr Tsui’s assertion that the interrogatories, or most of them, were contemplated in order to strike at the weakness of the defence or to avoid unnecessary court attendance of various witnesses, which would increase the cost and length of the trial.

14. Mr Tsui also has characterized the defendants’ present summons to withdraw the interrogatories as frivolous and vexatious, not made in good faith, and “merely an act of procrastination” which wastes the time and energy of the plaintiff and of the court, and he asks that the defendants answer on affidavit the interrogatories, as drawn, within seven days.

Decision

15. I have reminded myself of the developed jurisprudence applicable to interrogatories, and in particular the overriding principle that the interrogatories in question must be necessary either for disposing fairly of the cause or matter or for saving costs, that they should not be oppressive, irrelevant, prolix or imprecise, nor that they should “fish” for evidence.

16. Ultimately the matter is one for the discretion of the court, which is able to take into account all the circumstances of the case.

17. I have considered the respective positions of the parties to this application, as adumbrated in their detailed written presentations.  I have also taken into account the lateness of the request: it must be rare indeed to countenance the issuance of interrogatories no more than ten weeks before trial, and subsequent to an order for setting down, when one of the considerations of the court prior to permitting such setting down will have been whether there were significant outstanding procedural matters to be ‘cleared’ before the case is fixed for trial.

18. In all the circumstances I have decided to accede to the defendants’ request, in terms of the summons before me, that this second tranche of interrogatories should be withdrawn.

19. I have not found it easy to relate the requests to the essential matters in issue, as pleaded, and I note that all the questions as now raised can be posed directly to the defendants, who will in any case be called as witnesses at trial.  I see no reason why the defendants should now be required, at this late stage, further to consider and respond to these detailed questions (certain of the answers to which are said to be already canvassed in the documents), and which in any event are questions which I do not regard as being ‘necessary’ for the fair disposal of this action.

20. Nor on the basis of the information before me am I in a position to determine with any certainty whether, as the plaintiff suggests, the response to these various detailed matters would serve to lessen the number of witnesses that he may, or may not, ultimately decide to subpoena to give evidence at trial.  In this connection I would observe that I should be surprised indeed if mere ‘yes/no’ responses to some of these interrogatories was to be conclusive of the important issue of whom the plaintiff is to call in the conduct of his case.  I am of course sympathetic to Mr Tsui’s plea of impecuniosity, but looking at the matter in the round I do not consider that the justice of this case requires that these defendants now should be required to answer these interrogatories.  To the contrary.  It strikes me with some force that this late request should be dismissed as oppressive and unnecessary for the fair disposition of this case.

21. Accordingly, I order that the interrogatories filed by the plaintiff on 1 September 2004 be withdrawn.  I further order that the costs of this application are to be to the defendants, to be taxed if not agreed.  I make an order nisi to this effect.