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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D E C I S I O N

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Introduction

1.  This decision deals with the following summonses (in chronological order):

(a)     the plaintiff’s summons dated 5 September 2005;

(b)    the plaintiff’s summons dated 9 September 2005;

(c)     the plaintiff’s summons dated 13 September 2005;

(d)    the plaintiff’s summons dated 18 October 2005;

(e)     the defendants’ summons dated 18 October 2005.

These will be discussed further below but, before doing so, a brief account of the background leading to them will assist the comprehension of this decision.

Background

2.  Several written decisions have been handed down in relation to previous interlocutory applications in this action, the most recent of which was the one handed down on 5 September 2005.

3.  The decision dated 5 September 2005 said:

“To facilitate the understanding this judgment, the background leading to this application should be briefly mentioned.  For this purpose, I will gratefully quote from the judgment handed down on 20 October 2004 by Stone J:

‘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”.’

The defence to the claim is essentially (a) the defamatory meaning is denied, (b) justification and (c) publication on occasions of qualified privilege” (para. 2 and 3).

Relevant History of this Action

4.  The plaintiff commenced this action on 11 March 2003.  The first pre-trial review was conducted on 30 November 2004, such a review having been directed by the master when leave to set down this action for trial was given on 28 April 2004.  The plaintiff gave notice of setting down on 7 June 2004.

5.  Two summonses were before the court on 30 November 2004, both seeking leave to amend the plaintiff’s pleadings.  At the end of the hearing on that day, I ordered the pre-trial review to be adjourned sine die with liberty to restore and vacated the original trial dates, essentially because I considered the action was not yet ready for trial.

6.  In a decision handed down on 29 January 2005, leave was given in respect of parts of the proposed amendments sought in one summons whereas the other summons was dismissed.  The matter was subsequently taken on appeal by the plaintiff.  There were observations made by the court of appeal in a judgment handed down on 18 July 2005 regarding parts of the plaintiff’s pleadings.

7.  There was then a hearing on 31 January 2005 regarding the plaintiff’s application to vary a costs order made by Stone J, followed by two hearings in February and April 2005 respectively which were aborted because of the above appeal (which was pending at the time).  There was another hearing in May 2005 where the plaintiff applied to use 5 affirmations at the time of trial.

8.  Following another hearing on 5 August 2005, in a decision handed down on 30 August 2005, I refused the plaintiff’s application for me to recuse as the trial judge, and also the plaintiff’s application for leave to amend.

9.  The last hearing which is worth mentioning here was the one on 11 August 2005 where the defendants sought to strike out the statement of claim.  In a decision handed down on 5 September 2005, I acceded to that application in relation to parts of the pleadings.  This action was however not dismissed and leave was given to the plaintiff to amend his pleadings.  A costs order nisi was made that costs of the application be the defendants’ costs in the cause.

Plaintiff’s Summons dated 5 September 2005

10.  This is an application for:

“The costs order nisi dated 5 September 2005 [to] be varied”.

As stated above, that order was made at the end of a decision which struck out parts of the re-re-amended statement of claim and parts of the re-amended reply.

11.  The plaintiff has helpfully provided a written submission.  He submitted that the defendants ought to be deprived of the costs of their striking out application.  The basis of his submission is essentially this.  The defendants’ application was premised solely on RHC Ord. 18 r. 19(1)(a), namely, the claim discloses no reasonable cause of action. However, the court refused to strike out the claim on that ground.  Parts of the plaintiff’s pleadings were only struck out in exercise of the court’s inherent jurisdiction to prevent the likelihood of prejudicing, embarrassing or delaying fair trial.

12.  It must be borne in mind the costs order nisi does not adopt the usual rule that costs should follow the event: Ord. 62 r. 3(2).  It orders that the costs be the defendants’ costs in the cause, which means that:

“The [defendants] shall be entitled to [their] costs … if judgment is given in [their] favour in the cause or matter in which the proceedings arise, but [they] shall not be liable to pay the costs of [the plaintiff] in respect of those proceedings if judgment is given in favour of [the plaintiff] in the cause or matter in question”: Hong Kong Civil Procedure 2006, para. 62/3/6 (p. 927).

13.  Even though the basis of the decision was different from that advanced by the defendants, the fact remains the plaintiff resisted (unsuccessfully to a large extent) the application throughout.  Further, the defendants’ application has assisted the further conduct of this action; among other things, the attention of all concerned was drawn to the inadequacies in the plaintiff’s pleading.  As has been pointed out repeatedly, this is particularly important because of the plaintiff’s right to a trial by jury in this action: see para. 8 to 14 (especially para. 12 to 14), decision dated 30 August 2005 and 10 to 11, decision dated 5 September 2005.

14.  Having considered the whole circumstance, in particular those set out above, I find no valid reason to vary the costs order nisi.  This application is accordingly refused.

Defendants’ Summons dated 18 October 2005

15.  This application seeks to strike out the re-re-re-amended statement of claim and re-re-amended reply (both dated 30 September 2005) on the ground that they are an abuse of the process of the court.  In order to understand the basis of this application, reference must be made to the decision dated 5 September 2005.

16.  This application is discussed before the other 3 because of what transpired at the hearing on 24 October 2004 (explained in para. 17 to 21 below).

17.  As stated above, parts of the plaintiff’s pleadings have been struck out by the order dated 5 September 2005 with leave to the plaintiff to amend them.

18.  On 30 September 2005, the plaintiff filed a re-re-re-amended statement of claim (for convenience, “amended S/C”) and a re-re-amended reply (again for convenience, “amended reply”).  In fact, in relation to the amended reply, the plaintiff already indicated he would file it at the hearing on 11 August 2005 (see para. 42, decision dated 5 September 2005).  The amended S/C and amended reply will collectively be called “Amended Pleadings” below.

19.  This application is brought basically on the ground that their contents repeat (albeit using different ways of expression) those struck out by the order dated 5 September 2005.

20.  At the hearing on 24 October 2005, the plaintiff indicated that, save for some minor amendments, all the required amendments have been made in the Amended Pleadings.  Accordingly, he no longer pursued the summons dated 13 September 2005 (see the heading below).  In fact, in view of the plaintiff’s indication, save regards the “minor” amendments (which were not specified during the hearing), there should be no need for him to pursue his summonses respectively dated 13 September 2005 and 18 October 2005.

21.  On the other hand, the defendants’ stance is that neither the Amended Pleadings nor any of the proposed amendments set forth in the summonses is consistent with the order dated 5 September 2005.

22.  In relation to his summons dated 9 September 2005, the plaintiff seeks leave to amend based on the draft handed up at the hearing on 24 October 2005 (and not the one attached to that summons) (“the new draft reply”).  The defendants maintain their view regarding the new draft reply.  This will be dealt with in para. 30 to 32 below.

23.  A comparison of the parts of the plaintiff’s pleadings struck out by the order dated 5 September 2005 (collectively “the struck out pleadings” and respectively “the struck out S/C” and “the struck out reply”) and the various drafts will therefore facilitate the determination of the above dispute.  Comparison will firstly be made between the struck out pleadings and the Amended Pleadings.

Paragraph No. of Struck Out Pleadings	Summary of Contents	Paragraph No. of Amended Pleadings
Struck Out S/C		Amended S/C
4	plaintiff's dismissal took place on 25 October 2002 was supported by 4 incidents; 4 defamatory documents were published	parts of para. 4 are deleted.  The defamatory documents are limited to 3
5	defamation by D4 already pleaded in para. 3	deleted
6	plaintiff’s dismissal was the Director’s disciplinary action after the issuance of a warning letter supported by a defamatory letter written by D4 para. 6(a) to 6(g) are not contended to be defamatory and are irrelevant	the cause of the dismissal is deleted.  The defamatory meanings have been expressly pleaded.  Para. 6(c) to (e) are deleted
8	loss of opportunity to contest unreasonable comments in D2’s appraisal report	deleted
9	claim for damages is confusing and/or inconsistent with previous pleadings
10	para. 10 is replaced
Struck Out Reply		Amended Reply
2(e)	alteration of time of arrival at the office by other officers	same plea
2(g)	request by a Ms. Lo for non-disclosure of her identity	same plea
2(h)	Ms. Lo refused to sign her witness statement and District Officer sent plaintiff a warning letter	same plea
2(i)	plaintiff refused to acknowledge receipt of the warning letter	same plea
2(k)	Ms. Lo refused to sign her witness statement and D2 informed her D2 knew the witness was Ms. Lo	same plea
2(l)	plaintiff wanted to speak to Ms. Lo out of office but saw her walking with D2	same plea
2(m)	Ms. Lo informed plaintiff she was afraid of retaliation actions by D2 and D4	same plea
2(p)	Ms. Lo informed the plaintiff she signed a witness statement with a different account and refused to give plaintiff a copy	same plea
2(r) [erroneously identified as 2(n)]	various matters which should not properly be included as particulars of history of antagonism between the plaintiff and the defendants	same plea
2(s)	same plea
2(ee)	plaintiff's dismissal shows D2 and D4 have abused their power	same plea
7(h) 7(i)	plaintiff's dismissal was a heinous scheme with consent of District Office	same plea (now para. 7A(e)) same plea (now para. 7A(f))
7(k)	senior management has conspired with the defendants	same plea (now para. 7A(h))
12	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now para. 10A(c) but amended to plead knowledge of falsity is evidence of malice
13	plea of malicious falsehood not in Amended S/C and not relied upon at trial D4 conspired with District Officer	now para. 10A(d). Plea of malicious falsehood is deleted but conspiracy plea remains
14	District Officer allowed D4 to ventilate her personal spite despite plaintiff’s earlier complaint	now para. 10A(e)
15(t)	District Officer’s inability to explain	now para. 15A(f)
16	D4 behaved arbitrarily and dictatorially and was incompetent in management ability	now para. 15A(h)
17	now para. 15A(h)
20	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now para. 15A(m) but amended to plead knowledge of falsity is evidence of malice
21	plea of malicious falsehood not in Amended S/C and not relied upon at trial D4 conspired with District Officer	now para. 15A(n) but plea of malicious falsehood is deleted. Plea of conspiracy remains
22	plaintiff complained to District Officer in writing	now para. 15A(o)
26	plea of malicious falsehood not in Amended S/C and not relied upon at trial	deleted
29	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	deleted
30(b)	plea of malice in reply to defence of justification	deleted
35	this is related to para. 4(d), Amended S/C	deleted
36	unspecified conspiracy	deleted
56(a) to 56(w)	plaintiff has not been informed of appraisal report plaintiff lost opportunities to contest other “unreasonable” comments	para. 56(b) is now para. 56(c); para. 56(c) to (w) are deleted
58	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now second para. 56(d) but amended to plead knowledge of falsity is evidence of malice
60	defendants conspired to obtain consent from senior management to dismiss plaintiff	now para. 60(a)

24.  In brief, all the offending paragraphs in the struck out S/C no longer appear in the amended S/C.

25.  In relation to the amended reply:

(1)     para. 2(e), (g) to (i), (k) to (m), (p) to (s) and (ee);

(2)     the new para. 7A(e) to (f) and (h);

(3)     the new para. 10A(d) and (e);

(4)     the new para. 15A(f), (h), (j), (n) and (o);

(5)     para. 36;

(6)     the new para. 56(c);

(7)     the new para. 60(a),

have previously been struck out by the order dated 5 September 2005.

26.  The above averments in the amended reply should therefore be struck out as amounting to an abuse of the court process.  An order to this effect should be made in relation to this application.

Plaintiff’s Summons dated 9 September 2005

27.  This application states in the space provided in the summons for setting out the order sought:

“Please see the attached”.

This statement refers to a 2-page hand-written document attached to the summons.  It starts with:

“1. Plaintiff be at liberty to re-re-amend the Statement of Claim in  green within 14 days … ”

The rest of that document sets out in 12 sub-paragraphs (one of which has quite a few sub-sub-paragraphs) the proposed amendments (to the statement of claim) sought by the plaintiff.  The document continues:

“2. Plaintiff be at liberty to re-re-amend the Reply in purple … in the manner as per the copy annexed herewith … ”

with costs of the application payable to the defendants in any event.  The draft amended reply (some 43 pages long) is also attached.  The plaintiff also seeks an expedited trial date.

28.  The application for leave is opposed by the defendants on the same grounds summarised under the previous heading.

29.  The proposed amendments in this application relating to the statement of claim have in fact been incorporated into the amended S/C.  In para. 24 above, I have in effect concluded in the plaintiff’s favour in this regard.  There is accordingly no need to deal with this part of this application.

30.  As regards the proposed amendments relating to the reply, as stated in para. 22 above, the plaintiff now relies on the new draft reply (which he provided at the hearing on 24 October 2005).  The new draft reply contains proposed amendments to what appear to be para. 2(f) to (h), (j) to (k) and (o) of the amended reply.

31.  Despite the new draft reply, the proposed amendments still suffer from the same defects as those set out in para. 25 above.  Further to that, para. 2(k) of the new draft reply avers that Ms. Lo was deterred by D2 from acting as the plaintiff’s witness and D4 made her to attend to the service counter by herself during the weekends.  These averments are irrelevant to the cause of action and are at most evidence.  They are impermissible under RHC Ord. 18 r. 7(1) (facts, not evidence, to be pleaded).

32.  By reason of the above matters, no order will be made in relation to the proposed amendments to the statement of claim.  The part of this application relating to the proposed amendments to the reply is dismissed.

Plaintiff’s Summons dated 13 September 2005

33.  This application in effect seeks leave to amend the summons dated 9 September 2005 by adding a new sub-paragraph to draft amendments attached to that summons.

34.  As stated in para. 20 above, the plaintiff indicated on 24 October 2005 he no longer pursued this application.  This application is therefore dismissed.

Plaintiff’s Summons dated 18 October 2005

35.  This application seeks an extension of the time stipulated in para. 3 of the order dated 5 September 2005 for amending the reply.

36.   Proposed amendments are made to para. 2(e), (g) to (h), (i), (k) to (n) and (p) of the reply.  Except para. 2(l) and (p) of the draft which consists of the deletion of those sub-paragraphs, the proposed amendments suffer from the same defects as those set out in para. 25 above.

37.  For this reason, except in relation to the proposed deletions (to which leave is given) this application is dismissed.

Conclusion

38.  Save to the extent indicated above, the following summonses are dismissed:

(a)     the plaintiff’s summons dated 5 September 2005;

(b)    the plaintiff’s summons dated 13 September 2005;

(c)     the plaintiff’s summons dated 18 October 2005.

39.  The plaintiff is successful as regards his summons dated 9 September 2005 to the extent indicated above.

40.  The defendants are successful as regards their summons dated 18 October 2005 to the extent indicated above.

Pre-Trial Review

41.  The plaintiff restored the pre-trial review for it to be heard at the hearing on 24 October 2005.

42.  By virtue of the above, the plaintiff’s reply is still in a dissatisfactory state because parts of it have been struck out.  It is unclear if the plaintiff wishes to further amend it and if so what are the proposed amendments.

43.  In view of the contents of the Amended Pleadings, which resulted (among other things) in the defendants’ summons dated 18 October 2005, it is better not to indicate whether leave to amend will again be given to the plaintiff.  If the plaintiff in fact wishes to do so, he is reminded that the usual procedure should be followed, including setting out the precisely worded proposed amendment(s).  For the benefit of all concerned, the commentaries on the practice in Hong Kong Civil Procedure 2006 are quoted below:

“It is desirable to specify the intended amendments … either by stating them (if short) in the body of the summons … or by referring to them, e.g. ‘as set forth in red ink in the pleading annexed’ …

In practice, leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated …  In such case the order giving leave to amend binds the party making the application and he cannot amend generally … ” (para. 20/8/4, p. 357).

Besides this, other interlocutory matters, including those set out below, may still be outstanding.

44.  It is unknown if there is a need for further discovery to be made and/or other interlocutory steps to be taken as a result of the recent amendments to the pleadings.

45.  The trial bundles will need to be discussed and agreed and, in any event, require the court’s examination because of the plaintiff’s indication that this action be tried by a judge together with a jury.  It is necessary to ensure that only admissible materials are included in the bundles to be placed before the jury.

46.  In these circumstances, this action is not yet ready for trial.  I leave it to the parties to decide if any outstanding interlocutory matters ought to be dealt with at the restored pre-trial review or on other occasions.  The pre-trial review itself is against adjourned sine die with liberty to restore.

Costs Order Nisi

47.  In view of the above outcome, there will be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the summonses referred to in para. 38 above be paid by the plaintiff to the defendants in any event.

48.  There will also be a costs order nisi that three-fifths of the costs of the plaintiff’s summons dated 9 September 2005 and the defendants’ summons be paid by the plaintiff to the defendants in any event.

49.  To assist all concerned with the taxation of costs, I assess the hearing on 24 October 2005 should be apportioned as follows:

(1)     four-fifths thereof be apportioned to the defendants’ summons dated 18 October 2005;

(2)     one-fifth thereof be apportioned to the plaintiff’s summons dated 9 September 2005;

(3)     the remainder thereof be apportioned to the other summonses and the pre-trial review hearing.

The hearing on 14 September 2005 was in the nature of a call-over hearing.