LEUNG KAM CHUNG KENNETH v. COMMISSIONER OF POLICE

HCA 1936/2021

[2022] HKCFI 2416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1936 OF 2021

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BETWEEN

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D E C I S I O N

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Introduction

1.  This is an appeal against the Registrar’s case management directions.

2.  The Plaintiff sustained damage as a result of a fire outbreak allegedly caused by two tear gas submunitions shot into the Plaintiff’s clinic-cum-residence by police officer(s) operating along Austin Avenue, Tsim Sha Tsui in the morning of 18 November 2019. He claims against the Defendant for loss and damage of HK$6,721,161. The Defendant denies liability.

3.  Pleadings have closed by 14 April 2022. The Plaintiff filed a timetabling questionnaire on 10 May and a case management summons (“CMS”) on 23 May. The Defendant filed his timetabling questionnaire, admittedly out of time, on 17 June.

4.  On 21 June 2022, Mr Registrar Ho heard the CMS and gave the directions (“the Order”) that (1) the Defendant do file and serve a list of documents on or before 19 July 2022; and (2) the Defendant do take out an application for further and better particulars, if so advised, on or before 19 July 2022.

5.  On 30 June, the Plaintiff lodged the present appeal against the Order on 3 grounds:

(1) That Registrar Ho was wrong in accepting the Defendant’s timetabling questionnaire, which was filed and served out of time and hence inadmissible.

(2) That Registrar Ho was wrong in asking the Defendant to file, out of time, a list of documents on or before 19 July 2022.

(3) That Registrar Ho was wrong in asking the Defendant to apply for further and better particulars on or before 19 July 2022.

6.  The Defendant has since filed and served, on 19 July 2022, his list of documents and took out a summons for further and better particulars of the Plaintiff’s Statement for Endorsement of Claim.

Legal principles on appeal against the Registrar’s decision

7.  An appeal against the Registrar’s decision operates by way of rehearing and the judge treats the matter as though it came before him for the first time Hong Kong Civil Procedure 2022, Vol 1, §58/1/2.

8.  It is well-established that in relation to an appeal against a case management decision made by the Registrar/a Master, a judge should not “lightly interfere” with that decision and should only do so for “good reason”: X v Dr Hung Cheung Tsui & Another, HCPI 67/2014 (unreported, 23 May 2017), §10, Chow J (as he then was).

Ground 1 - Defendant’s Timetabling Questionnaire being “inadmissible”

9.  The notion of admissibility governs evidence. A timetabling questionnaire is not evidence.

10.  Order 25, rule 2 of the Rules of the High Court (“RHC”) requires the Court to consider all matters which are required by Order 25 to be considered at the CMS. Pursuant to Order 25, rule 6(1), it shall be the duty of the parties to the action and their advisers to give all such information and produce all such documents as the Court may reasonably require for the purposes of enabling it properly to deal with the CMS. A timetabling questionnaire is a document submitted by a party, pursuant to his duty under rule 6(1), to inform the Court of the case details and progress to enable the Court, to give directions and fix a timetable for steps to be taken under the CMS.

11.  Order 25, rule 1 requires timetabling questionnaires to be filed and served within 28 after pleadings and a CMS to be taken out where the parties cannot reach agreement on directions.

12.  In the event a party is late in filing and serving a timetabling questionnaire, the other party can apply to the Court eg to adjourn the CMS so as have further time to respond to the timetabling questionnaire. The Court may eg compel (by way of an unless order) a defaulting party to file and serve a timetabling questionnaire.

13.  By virtue of Order 2, rule 1(1), a party’s failure to comply with the requirements of the RHC “shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein”.

14.  In the present case, no adjournment of the CMS was called for. Accordingly, even though the Defendant’s timetabling questionnaire was filed late, Registrar Ho was entitled to and has rightly considered all matters before making the Order. Ground 1 fails.

Ground 2 – Defendant not entitled to file a list of documents

15.  Order 24, rules 1 and 2 that govern mutual discovery of documents between parties shall not apply in civil proceedings to which the government is a party, which is the case here: Order 77, rule 12 of the RHC.

16.  However, it was well within the case management powers of Registrar Ho to order the Defendant to file a list of documents in order to secure the just resolution of the disputes between the parties.

17.  The list of documents filed by the Defendant pursuant to the Order discloses documents that are plainly relevant to the dispute between the parties, demonstrating the correctness of the Order. Ground 2 fails.

Ground 3 – Defendant should not be allowed to take out an application for further and better particulars

18.  The Defendant did state in his timetabling questionnaire that he intended to take out an application for further and better particulars of the Plaintiff’s Statement for Endorsement of Claim. Against that background, Registrar Ho made the direction giving 28 days for the Defendant to do so.

19.  The Plaintiff objects, relying on Order 77, rule 3 of the RHC which provides that:

“(1) In the case of a writ which begins proceedings against the government, the indorsement of claim required by Order 6, rule 2 shall include a statement of the circumstances in which the government’s liability is alleged to have arisen and as to the government department and officers of the government concerned.

(2) If in civil proceedings against the government a defendant considers that the writ does not contain a sufficient statement as required by this rule, he may, before the expiration of the time limited for acknowledging service of the writ, apply to the plaintiff by notice for a further and better statement containing such information as may be specified in the notice.” (underline added)

20.  The Plaintiff contends, firstly, that his writ and Statement for Endorsement of Claim have complied with Order 6, Rule 2. The Defendant has filed and served his acknowledgement of service on 3 January 2022 without requesting for further and better particulars. It indicated that the Defendant was satisfied with the particulars mentioned in the writ and endorsement of claim. Registrar Ho was wrong in directing the Defendant to take out the application for further and better particulars.

21.  Secondly, the Plaintiff contends that Order 77, rule 3 highlights that the request for further and better particulars should be on the liability issue (which is also the sole objective of the writ) and not the quantum issue. The Plaintiff’s writ contains an endorsement of claim instead of a statement of claim. The quantum part is premature without admission of liability by the Defendant.

22.  Without disrespect, the first contention of the Plaintiff is incorrect. Order 77, rule 3(2) permits but does not require (as evidenced by the use of the word “may”) the government to apply for further and better particulars before filing the acknowledgement of service. That rule does not bar the Defendant from seeking further and better particulars pursuant to Order 18, rule 12(3).

23.  As for the 2^nd contention of the Plaintiff, it is the general rule that all issues in a case (ie liability and quantum) are to be tried at the same time, Hong Kong Civil Procedure 2022, Vol 1, §33/4/9. This is regardless of whether the Plaintiff filed an endorsement of claim or statement of claim. In fact, the Plaintiff himself has pleaded the amount of damages he intends to seek in the Statement for Endorsement of Claim.

24.  The Defendant’s request for further and better particulars precisely relates to the amount of damages sought. That enormous amount of over $6 million do call for a breakdown.

25.  An early request for further and better particulars at the case management stage facilitates early identification of the issues in dispute, assessment of the merits by the parties and discussions on settlement

26.  Accordingly, Registrar Ho acted correctly in directing the Defendant to take out the appropriate application for further and better particulars. The time he gave to the Defendant to do so was reasonable. Ground 3 fails.

Conclusion and Costs

27.  None of the grounds put forward by the Plaintiff constitute good reasons for this Court’s interference with the Order. Accordingly, the appeal must be dismissed.

28.  The appeal stems from the Plaintiff’s strict compliance with the rules and his expectation that the Defendant do likewise. The Plaintiff has some misunderstanding of the rules but his conduct is not frivolous.

29.  On a nisi basis, costs should follow the event and be borne by the Plaintiff. The question of quantum of costs will be dealt with on paper after the Plaintiff lodges and serves his grounds in opposition by 12 noon on 8 August 2022.

A note on the way forward

30.  The Court appreciates the way the Plaintiff wants to save the Court’s time by having the question of liability dealt with first before the quantum of damages. At this hearing the Court has informed the Plaintiff that it is not up to him to decide on a split trial and, as the case presently stands, there is nothing to justify a split trial. Accordingly, it is up to the Plaintiff and/or the Defendant to apply for a split trial eg in a future case management conference.

31.  The Court has also told the Plaintiff that he should not think that he had “just filed an endorsement of claim”. The is because the Defendant has filed a defence in response and the Plaintiff has filed a reply; the Plaintiff himself has treated the pleadings as closed and filed a CMS; and the Court has given directions on the CMS. From the procedural history, it is apparent that both parties and the Court have treated him as having filed a statement of claim. Accordingly, this Court has reminded the Plaintiff that if he still wants to file a statement of claim, he must do so as early as possible.

32.  I thank Mr Yim for his assistance.