CHEUNG LIK HANG v. SECRETARY FOR JUSTICE for and on behalf of THE COMMISSIONER OF POLICE

HCPI 20/2023

[2024] HKCFI 1855

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 20 OF 2023

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R E A S O N S    F O R    D E C I S I O N

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1.  After hearing the parties on the day the trial was supposed to commence, this court acceded to their joint application to vacate the trial. It is necessary to make known the episode both for the record and for case management purpose. In respect of the latter, this also serves as alert to the parties involved in other actions as well as the court case managing them.

2.  What happened that derailed the scheduled trial was exceptional and regrettable.

Background

3.  This action arose out of the public order incident on 14 July 2019 in Shatin, amidst the social unrest in different districts of the Special Administrative Region during that period. On the day, the plaintiff, a plain-cloth police officer of the Crime Team, was attached as support to the Police Tactical Unit (“PTU”) team deployed to maintain and to restore peace and order in Shatin, New Territories. The PTU team ended up in Shatin New Town Plaza where the officers found themselves confronted by a large number of protesters shouting threats and throwing objects to them. The chaos ended up in violence and arrests. In the course of that, the plaintiff was attacked, which caused him multiple injuries including left eye vision impairment and post-traumatic stress disorder. 2 attackers responsible (“the Attackers”) were subsequently prosecuted and convicted of the assault.

4.  Besides claiming employees’ compensation against the defendant (“CP”) as his employer (ie DCEC 463/2021), the plaintiff commenced action in the District Court against CP for common law damages for his injuries and consequential damage (ie DCPI 2256/2022). The causes of action are negligence as well as breach of implied contractual and statutory duty on the part of CP as his employer to ensure that the plaintiff was reasonably safe in his execution of duty in the circumstances. The plaintiff is represented by Messrs Tung, Ng, Tse & Lam (“TNTL”).

5.  The plaintiff subsequently revised the quantum of his claim to exceed the monetary jurisdiction of the District Court. By consent, the action was transferred to this level of court by the order of the District Court master in December 2022. Hence the present action. After rounds of case management, the present action was eventually set down for trial before this court, commencing on 2 July 2024. A pre-trial review hearing was held before this court on 18 March 2024.

6.  By their joint letter dated 13 June 2024 (“the Joint Letter”) and the consent summons filed on the same day, the parties sought to vacate the scheduled trial. The application came when this court was yet to return from vacation leave. By the Joint Letter, the parties revealed that the plaintiff has in fact commenced a separate action in the District Court against the Attackers (ie DCPI 1541/2022) less than 2 months before DCPI 2256/2022. By DCPI 1541/2022, the plaintiff claims damages for his injuries and damage arising out of the same incident. Messrs Chiu, Szeto & Cheng (“CSC”) act for the plaintiff in DCPI 1541/2022.

7.  The existence of DCPI 1541/2022 concurrent with DCPI 2256/2022, and subsequently the present action, has all along been withheld from the court.

8.  The Joint Letter also revealed that the claim against one of the Attackers, the 2^nd defendant, in DCPI 1541/2022 has been discontinued upon settlement. Against the remaining 1^st defendant, interlocutory judgment on liability for damages to be assessed has also been entered.

9.  Urgently consulting the court file in DCPI 1541/2022, this court discovered that the claim against the Attackers is based on the assault being an intentional tort evidenced by their criminal convictions and the factual basis of such convictions. His case on quantum against the 1^st defendant is ongoing and being case managed by the master in the District Court up to the stage of direction in respect of medical expert evidence. The next checklist review hearing has been scheduled to take place in November 2024.

The problems

10.  The problems are readily patent.

11.  First, it is inconceivable for the plaintiff to advance different cases on quantum in respect of the same damage arising out of the same incident against the Attackers in DCPI 1541/2022 and CP in the present action.

12.  Second, it is equally inconceivable that the issue of damage and quantum in the separate actions would be allowed to proceed to trial by different courts, and now even courts of different levels.

13.  Third, even if the issue of damage and quantum in the separate actions may somehow be arranged to be tried by the same court at the same time, the plaintiff still cannot act by different legal representatives advancing on his behalf different cases in respect of the same issue at the trial.

14.  Fourth, and following from the above, there is no alignment of the evidence in respect of quantum, which should be common in both actions. The plaintiff would now rely on different witness statements of his and different medical expert evidence. Even if intended, the plaintiff has no liberty to rely for the purpose of DCPI 1541/2022 on the medical expert evidence jointly obtained by the parties in the present action. Nor is the 1^st defendant in DCPI 1541/2022 bound by such evidence obtained in the present action without his say.

15.  Last, concern about double compensation because of separate awards in respect of the same damage was also acknowledged in the Joint Letter. That would too be true. However, compared with that, the problems set out above are more pertinent and practical concern of the parties, now that the present action is already ready for trial whereas the assessment of damages in DCPI 1541/2022 is not.

16.  The plaintiff in both cases and CP are legally represented. This court queried how those acting for the parties, particularly the plaintiff, would have failed to appreciate the above problems and proceeded with the separate actions. This court also queried how the situation could have all along been withheld from the court. Regarding that, the parties confirmed that no hint of DCPI 1541/2022 whatsoever has been made in the pleadings, witness statements and other court documents as well as the documentary evidence disclosed in the present action. Nor was that mentioned during the pre-trial review hearing before this court in March.

The Joint Letter and this court’s direction

17.  According to the Joint Letter, DoJ first alerted TNTL to its recent notice of DCPI 1541/2022. TNTL then sought clarification with the plaintiff, and were given to understand that on 24 May 2022, CSC did inform DoJ of the commencement of DCPI 1541/2022.

18.  The Joint Letter also explained that upon instruction from the plaintiff in June 2022 to act for him in the intended common law claim against CP, they commenced DCPI 2256/2022 on behalf of the plaintiff in July 2022.

19.  In March 2023, the plaintiff’s claim against the 2^nd defendant in DCPI 1541/2022 was settled and discontinued. According to TNTL, the plaintiff’s instruction was that CSC had advised him that the settlement with the 2^nd defendant and the maintenance of the claim against the 1^st defendant in DCPI 1541/2022 would have no bearing on the present action as the defendants and nature of claim in the separate actions are different.

20.  Now the parties in the present action have discussed, and agreed that it would be inappropriate to proceed with the trial as scheduled. Hence their joint application to have the trial vacated.

21.  By the written direction on 21 June 2024, this court made clear that the Joint Letter did not suffice in answering the above query.

22.  First, if CSC had indeed advised the plaintiff that maintenance of DCPI 1541/2022 would have no bearing on the present action, such advice would have been ill for failure to appreciate the problems explained above.

23.  Second, the Joint Letter was unclear as to when TNTL first came to be aware of the existence and maintenance of DCPI 1541/2022.  The court record showed that CSC were aware of DCEC 463/2021 in which the plaintiff, as the applicant for compensation, was represented by another firm of solicitors. Gathering from the court documents in the actions, this court also understood that TNTL also acted for the plaintiff in DCEC 463/2021, which was not settled until July 2023. The normal case management was expected to entail putting the court on notice of any related employees’ compensation claim and common law claim arising out of the same incident. It was therefore unclear if the parties and their legal representatives in the present action, which were the same in DCEC 463/2021, were suggesting that they nevertheless were unaware of DCPI 1541/2022 for the whole time.

24.  Third, the Joint Letter suggested contradictory versions as to when DoJ first came to learn about the commencement of DCPI 1541/2022. On the one hand, it suggested that according to DoJ, the commencement of that action by CSC had come to its attention only recently. On the other hand, it suggested that according to the plaintiff, CSC gave notice of the action to DoJ on 24 May 2022.

25.  Taking the view that the questionable situation and its impact on the milestone date such as that of the trial must be properly accounted for, this court refused to dispose of the application by way of consent merely on the force of the Joint Letter. That the parties also agreed on the issue of the consequential costs of vacating the scheduled trial did not absolve them from the duty to answer to the court in these circumstances.

26.  Therefore, this court directed each of the plaintiff, TNTL and DoJ to file and serve their respective affidavits explaining in detail (i) how the situation of separate and concurrent actions in respect of the same damage of the plaintiff came about; (ii) how and why the situation has so far been withheld from the courts of both levels until this stage; and (iii) for the purpose of (i) and (ii) the dates of the relevant knowledge and steps taken. The plaintiff was also directed to cause the above affidavits to be copied to CSC in DCPI 1541/2022 for their information.

27.  As to the course to take in the circumstances, it was abundantly clear that the issue of damage and quantum in the present action could not proceed to trial. That being said, this court made the tentative observation that the problems explained above did not seem to stand in the way of nevertheless proceeding with the trial as scheduled but of the issue of liability only.

28.  What caused this court to express the above tentative view was that the cause of the plaintiff’s claim against the Attackers in DCPI 1541/2022 differs from that of his claim against CP in the present action. Apart from the attack which, as a matter between the plaintiff and the 1^st defendant in DCPI 1541/2022, has become undisputed, there should be no real common factual issues between the actions relevant to the issue of liability in the present action. In the circumstances, this court saw practical advantage of nevertheless proceeding with the trial of the present action as scheduled albeit of the liability issue only, while the issue of quantum would inevitably be deferred for further case management. If the parties agreed, direction including splitting the trial on liability and quantum could be given. This court directed the parties to jointly propose directions.

29.  This court intended to hear the parties on the above observation. Without prejudice to that, the parties were directed to proceed on the basis that the trial might be split into that of the issues of liability and quantum, and that the trial might as scheduled commence on 2 July 2024 in respect of the issue of liability; and therefore the parties should attend and prepare accordingly.

The affidavits and subsequent correspondence

30.  As directed, each of the plaintiff, TNTL and DoJ has filed affidavit explaining the situation. They were followed by further correspondence, including letters from CSC, on the matter. They made known the following relevant matters.

31.  It was in 2021 when CSC received assignment from the Civil Service Bureau through the Director of Legal Aid (“DLA”) to act for the plaintiff in filing the common law claim against the Attackers. DCPI 1541/2022 was commenced.

32.  By letter dated 24 May 2022, CSC gave notice of the commencement of DCPI 1541/2022 to DoJ while DCEC 463/2021 was in progress. On its face, it was a notice pursuant to section 25 of the Employees’ Compensation Ordinance, Cap 282 which provides for the remedies of an employee against both the employer and third party. By such notice, the employer by whom compensation is payable to the employee is alerted to his right of action against the third party for recovery of any compensation which the employer may be obliged to pay to the employee, either by joining in an action begun by the employee against the third party or by instituting separate proceedings. DoJ was requested to indicate whether it would require any further information or particulars in connection with the plaintiff’s claim against the Attackers in DCPI 1541/2022.

33.  Contrary to the observation stated in DoJ’s affidavit, this court does not read the above letter as one limited to the context of potential recovery of employees’ compensation under DCEC 463/2021. It should also be noted that DoJ admitted knowledge that the plaintiff (applicant) in DCEC 463/2021 was actually represented by another firm of solicitors. That being said, DoJ did admit inadvertence and failure to register the information about existence of DCPI 1541/2022 actually provided by the notice.

34.  Acting through TNTL, the plaintiff commenced DCPI 2256/2022 against CP in July 2022, which was less than 2 months after the plaintiff’s commencement of DCPI 1541/2022 against the Attackers through CSC. TNTL now admitted knowledge from the plaintiff about the existence of DCPI 1541/2022. According to them, they even had a conference with counsel on 5 August 2022 when TNTL and counsel advised the plaintiff to stay or withhold further proceedings in DCPI 1541/2022 pending the outcome of DCPI 2256/2022, and that the plaintiff should seek advice of CSC. The plaintiff was reminded of the potential issues in relation to the concurrent proceedings which might arise.

35.  However, TNTL had since assumed that the plaintiff did act according to their advice and that further proceedings in DCPI 1541/2022 would be stayed or withheld. That proved not to be the case, as according to them, the plaintiff informed them in March 2023 of the offer for settlement by the 2^nd defendant in DCPI 1541/2022. According to TNTL, they then again raised their concern with the plaintiff and asked him to seek advice from CSC as to whether acceptance of the settlement offer would raise issues in relation to double recovery and concurrent proceedings. Subsequently the plaintiff informed TNTL of his acceptance of the offer and the advice of CSC that the settlement with the 2^nd defendant and continuance of the claim against the 1^st defendant in DCPI 1541/2022 would have no bearing on the present action as the defendants and the nature of the actions are different. It was also the advice of CSC that they were somehow unable to stay or withhold proceedings in DCPI 1541/2022.

36.  Not surprisingly, CSC saw their interest to be heard in relation to the above version of events according to the plaintiff and TNTL. They wrote to TNTL on 24 June 2024 and to this court on 28 June 2024 to put on record their version of events.

37.  According to CSC, since the commencement of DCPI 1541/2022, they noticed the intention of the plaintiff to commence personal injury action against CP as well, but had not received any information regarding that from the plaintiff thereafter. Importantly, they denied any knowledge about the plaintiff’s having instructed TNTL to act for him in commencing DCPI 2256/2022. They had no knowledge about the conference of the plaintiff and TNTL with counsel or their advice concerning CSC on 5 August 2022. Nor did CSC have knowledge about the transfer of DCPI 2256/2022 to become the present action. CSC categorically denied that they had advised the plaintiff that acceptance of the offer to settle with the 2^nd defendant in DCPI 1541/2022 and the claim against the 1^st defendant would have no bearing on the present action because the defendants and the nature of the claims in these actions are different. They also denied having advised the plaintiff that they refused to stay or withhold the proceedings in DCPI 1541/2022. According to CSC, it was not until the letter from TNTL dated 4 June 2024 that they first came to know about the proceedings in the present action and the trial scheduled to commence on 2 July 2024.

The parties’ stance at the hearing

38.  Probably in view of the direction of this court dated 21 June 2024, TNTL in their subsequent letters adjusted their stance so that they became neutral as to whether the trial as scheduled might still proceed in respect of liability only. The plaintiff also offered to stay the proceedings in DCPI 1541/2022 pending the outcome of the present action. Counsel for the plaintiff maintained such stance at the hearing on 2 July 2024.

39.  Counsel for CP maintained that the whole trial should be vacated. He explained that his brief was actually limited to making such application, and approval would be necessary if counsel was otherwise briefed for the trial. I was puzzled by the decision of DoJ to brief counsel on such basis, which did not align with this court’s direction that the parties should be prepared to proceed with the trial on liability if this court indeed resolved to so direct after hearing the parties on 2 July 2024.

Observation and resolution

40.  Counsel for CP explained that it would still be necessary for the court to make findings of facts in respect of the liability of the Attackers in DCPI 1541/2022 as the same would be relevant to CP’s right to seek contribution or indemnity against them as third parties in the event that CP is found liable to the plaintiff.

41.  The fact is no such third party proceedings have been commenced by CP against the Attackers by now. But for this episode brought about by the plaintiff’s concurrent actions, this court would have thought that any attempt to vacate the trial on the ground that CP now intends to initiate third party proceedings against the Attackers for contribution or indemnity would not be viewed favourably by any court.

42.  The fact was also that DoJ could have initiated third party proceedings against the Attackers at any time after the commencement of DCPI 2256/2022 in July 2022. Such consideration should have had nothing to do with whether or not DoJ was aware of the commencement of DCPI 1541/2022. DoJ is expected to possess independent knowledge about the identity of the Attackers by way of conducting the prosecution and securing conviction of them for the assault on the plaintiff back in September 2020.

43.  In any event, proceeding with the trial on liability in the present action now would not prejudice the right of CP to pursue the Attackers as third parties for contribution or indemnity. His right to do so by separate action should still be within time limitation as of now.

44.  Hearing counsel, I was not impressed that he really managed to question the validity of the above observations.

45.  At the end, the further argument of counsel boiled down to his urging the court to nevertheless allow CP to make use of the opportunity resulting from the episode now to join the Attackers as third parties in the present action so as to bring in issues of fact surrounding the assault as would be relevant to the question of liability between the plaintiff and CP, including contributory negligence. On that basis, he referred to the desirability of allowing such facts to be found by the court at the same time of trying the main action and the third party action.

46.  The desirability in terms of procedure mentioned above of course needs no introduction. However, as mentioned, precisely what and how such common factual issues, apart from the indisputable assault by the Attackers on the plaintiff, should come about are not readily apparent. That being said, it might also be said to be a matter of formulation or re-formulation by the parties in the present action which could potentially cast different light. On second thought, I had no intention of holding a strong view that might effectively shut them out.

47.  This court also considered that in any event, the bulk of the present action, which had to be adjourned for further case management, would be expected to take some time before again reaching the trial stage. Further, as CSC acknowledged, the conflict between them and the plaintiff mentioned above have put them in a professionally embarrassing position to continue to act for the plaintiff. Until the legal representation of the plaintiff in DCPI 1541/2022 has been sorted out, no step may be taken on his behalf in that action against the 1^st defendant. Where any step is taken, the 1^st defendant in that action would be entitled to be heard as well.

48.  This is not to say that TNTL have nothing of the above sort which would cause them concern in the present case. Irrespective of which of the plaintiff’s version or CSC’s version of events mentioned above was the truth, it was from the outset the primary professional duty of TNTL and the plaintiff’s counsel to advise and to conduct the proceedings in the present action on his behalf. Though they claimed awareness of the problems of the concurrent actions from the outset and the provision of multiple advice to the plaintiff of their ramifications, they were deficient in professional judgment by allowing the situation to develop. They did so without satisfying themselves by verification of the state of DCPI 1541/2022. They also refrained from revealing the concurrent action in the pleadings and witness statement or discovery as if that was irrelevant.

49.  TNTL, according to them, then came to know about the settlement of their client’s claim against the 2^nd defendant in DCPI 1541/2022 at HK$150,000 in March 2023. That should prove to them that any assumption so far about the plaintiff having followed their advice to stay the proceedings in DCPI 1541/2022 was incorrect. They should also know that the plaintiff would be bound to give credit to such compensation in his claim for the same damage in the present action. Yet they saw fit not to mention that in the revised statement of damages filed in June 2023. Nor was there intention to adduce evidence to disclose the fact. The fact of the concurrent actions continued to be withheld from the court when the case was set down for trial and even at the pre-trial review hearing before this court on 18 March 2024.

50.  Unlike DoJ, which was forthcoming in admitting inadvertence in failing to register the information about the commencement of DCPI 1541/2022 back in 2022, TNTL never admitted any deficiency on their part in the episode, which now led to the vacating of the scheduled trial and costs against the plaintiff. There arose the question of whether the plaintiff should be entitled to advice by TNTL of his rights in the circumstances, including for such purpose his right to seek independent legal advice. As there might be potential issue of the plaintiff’s legal representation in the present action requiring sorting out, the good intention of this court to see that the trial nevertheless proceeded on liability as scheduled might not be practicable either.

Disposition

51.  It was in the above circumstances that this court finally acceded to the application for vacating the trial.

52.  It was agreed under the consent summons that the plaintiff should pay the costs of the application. In view of his primary responsibility as the prosecuting party and the deficiency in the professional judgment of those acting for him in the present action in allowing the action to proceed concurrently with DCPI 1541/2022, this had to be the proper costs order. Costs of the action were reserved. As indicated, this court would separately give further case management directions to the parties concerning the way forward in the present action.

53.  As a postscript, this court would add that that an incident causing injuries and damage to multiple victims, such as what happens in a major accident, may give rise to separate legal actions is conceivable. The court also had the experience in such circumstances to contemplate the need for proactive global case management of those actions involving common issues of fact or liability. However, the situation of separate actions by the same plaintiff through different legal representatives against different defendants in respect of the same damage arising out of the same incident as well as the maintenance of such situation is not as conceivable for the court to guard against. This court can only assume that that was why the situation had escaped from the attention of the District Court, notwithstanding that the separate actions in question were commenced within less than 2 months and both were still case managed at the same level of court until the transfer of one of them to this level of court at the end of 2022.

54.  Whilst not suspecting the probable recurrence of what happened above, this court would in any event stress that legal representatives must be alert. Insofar as the court on both levels is concerned, this court reckons that a comprehensive search into the current personal injury actions arising out of the various public order incidents during the social unrest period commencing in 2019 may be warranted. This could be done as the time limitation for commencing such actions should have expired in most, if not all, cases by now. If multiple actions involving common issues of facts or liability are found to exist, the court should proactively consider the need for global case management as soon as practicable.