陳祺豐 v. 何志賢 AND ANOTHER

HCAL 1534/2019

[2019] HKCFI 1872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1534 OF 2019

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D E C I S I O N

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INTRODUCTION

1.  In this application for leave to apply for judicial review, the Applicant seeks to challenge:

(1) the decision of Master A Ho on 6 March 2019 to strike out the Applicant’s 24^th Affirmation (“the 24^th Affirmation”) filed in HCA 2782/2015 and HCA 142/2016 (consolidated pursuant to the Order of Master Lai dated 19 February 2016) (hereinafter referred to as “the First Consolidated Action”) on 4 February 2019;

(2) Master A Ho’s alleged dishonest use of a computer during the period from 23 November 2018 to the present to change the nature of a summon issued by the plaintiff in the First Consolidated Action on 25 June 2018 (“the Summons”); and

(3) the decision of Master A Ho on 29 May 2019 to refuse to provide to the Applicant a compact disc (“the Compact Disc”) containing the audio recording of a hearing on 22 November 2018.

THE DECISION TO STRIKE OUT THE 24^TH AFFIRMATION

2.  The Applicant is the defendant in the First Consolidated Action, and was formerly an employee of Chuk Lam Ming Tong Limited (“CLMT”), the plaintiff in the First Consolidated Action.

3.  On 4 February 2019, the Applicant filed the 24^th Affirmation in the First Consolidated Action.  According to the Applicant, the 24^th Affirmation was filed pursuant to Order 1A, rule 3 of the Rules of the High Court, Cap 4 (“the Rules”), to “assist the Court to further the underlying objectives of these rules”.

4.  By a letter from Master A Ho’s clerk to the Applicant dated 18 February 2019, Master A Ho explained to the Applicant that the purpose of filing affirmations was to support interlocutory applications made under the Rules, and directed the Applicant to explain the basis for the filing of the 24^th Affirmation within 14 days, failing which it would be struck out.

5.  In response, the Applicant wrote two letters to the Registrar Kwang’s clerk and Master A Ho’s clerk both dated 25 February 2019, but failed to justify the filing of the 24^th Affirmation. Accordingly, on 6 March 2019, Master A Ho made an order striking out the 24^th Affirmation from the court file in the First Consolidated Action.

6.  The decision of Master A Ho is correct.  A party has no general right to file an affidavit/affirmation in an action otherwise than pursuant to the Rules or an order of the court.  The court file is not a depository of whatever documents that a party may wish to keep or retain in it.  The court has an inherent jurisdiction to strike out or expunge an irrelevant affirmation, or an affirmation not properly filed pursuant to the Rules or a court order, from the court file.

7.  In any event, a party who is dissatisfied with a judicial decision made by a master may appeal the decision to a judge in chambers by giving a notice of appeal within 14 days after the giving of the decision pursuant to Order 58, rule 1 of the Rules.  Judicial review does not lie against a judicial decision of a master which is appealable under the Rules.  The Applicant’s intended challenge of Master A Ho’s decision to strike out the 24^th Affirmation by way of judicial review is not reasonably arguable and has no realistic prospect of success.

THE ALLEGATION THAT MASTER A HO DISHONESTLY USED A COMPUTER TO WRONGFULLY CHANGE THE NATURE OF THE SUMMONS

8.  CLMT is also the plaintiff in 2 other actions, namely, (i) HCA 2291/2015 (“the Second Action”) and (ii) HCA 2869/2015, HCA 283/2016 and HCA 384/2016 (consolidated pursuant to the Order of Master Hui dated 9 March 2016) (“the Third Consolidated Action”).

9.  On 25 June 2018, CLMT issued the Summons seeking the following order:

(1) the three actions be tried one immediately after the other by the same judge;

(2) the Second Action be tried first; and

(3) the First Consolidated Action and the Third Consolidated Action be tried together after the conclusion of the trial of the Second Action,

on the ground that all three actions raised a common issue, namely, the validity of certain resolutions passed at a meeting of the members of CLMT on 20 September 2015, one of which related to the dismissal of the Applicant as an employee of CLMT.

10.  At the first call-over hearing of the Summons on 4 July 2018, Master Lui made an order that the hearing of the Summons be adjourned to a date to be fixed, with 2 hours reserved.

11.  On 1 August 2018, the Summons was fixed to be heard before Master A Ho on 22 November 2018.  The nature of the Summons to be heard, as appeared on the Judiciary website, was stated to be “For trial before the same Judge”.

12.  At the hearing on 22 November 2018, Master A Ho made an order that the hearing of the Summons be further adjourned to 29 March 2019, with 2 hours reserved.  During the period from 1 December 2018 to 29 March 2019, the nature of the Summons to be heard, as appeared on the Judiciary website, was stated to be “Application for 3 actions be tried together”.

13.  Arising from this change in the description of the nature of the Summons as appeared on the Judiciary website, the Applicant alleges that Master A Ho must have dishonestly used a computer to change the nature of the Summons from “For trial before the same Judge” to “Application for 3 actions be tried together”.  In my view, there is no inconsistency in describing the nature of the Summons as “For trial before the same Judge” or “Application for 3 actions be tried together”.  Both descriptions fairly and correctly state the general nature of the Summons.  In any event, the nature of the Summons depends on the relief sought in that summons, not on its description as appearing on the Judiciary website.  The allegation that Master A Ho dishonestly used a computer to change the nature of the Summons is completely without basis or foundation, and must be rejected.

THE DECISION NOT TO PROVIDE THE COMPACT DISC

14.  The Applicant was present at the hearing before Master A Ho on 22 November 2018, in the course of which the Master made a number of procedural directions after hearing submissions from the parties (including the Applicant).

15.  By a letter dated 23 November 2018 to Master A Ho’s clerk, the Applicant requested for a compact disc containing the audio recording of the hearing on 22 November 2018 (ie, the Compact Disc) with an undertaking to pay the relevant charges.

16.  By a letter dated 4 December 2018, Master A Ho asked the Applicant to explain the reason for seeking the Compact Disc, and further informed the Applicant that a transcript of his oral decision given on 22 November 2018 would be provided to the Applicant.

17.  In response, the Applicant sent a letter dated 10 December 2018 to Master A Ho’s clerk stating, inter alia, that he was entitled to be provided the Compact Disc under Articles 25 and 38 of the Basic Law, and that Master A Ho has no right to ask him to give reasons for seeking the Compact Disc.

18.  By a letter dated 24 December 2018, Master A Ho rejected the Applicant’s request to be provided the Compact Disc in view of his failure to give any reasons for his request.

19.  Subsequently, the Applicant repeated his request in a letter dated 4 April 2019 to Master A Ho’s clerk, and in further letters dated 31 March 2019 and 21 May 2019 to Registrar Kwang’s clerk.  The Applicant’s further requests were rejected by Master A Ho on 16 April 2019 and 29 May 2019.

20.  It is generally a matter of discretion for the presiding judge or master of a hearing to decide whether to accede to a request by a party for the preparation and provision of a transcript or a compact disc containing the audio recording of the hearing.  In the present case, the Applicant has not suggested that he has lodged an appeal, or intends to lodge an appeal (now out of time), against the order made by Master A Ho on 22 November 2018, or that what was said at the hearing could be relevant to such appeal (if any).  The Applicant was present at the hearing on 22 November 2018 and should be fully aware of what happened and what was said at that hearing.  There is nothing in the materials before the court to show that what was precisely said at that hearing has any further materiality or relevance to the Applicant’s future conduct of the First Consolidated Action.  Bearing in mind also that Master A Ho has directed the preparation of a transcript of his oral decision given at the hearing to be provided to the Applicant, I do not consider the Master’s exercise of discretion to refuse the Applicant’s request for the Compact Disc to be unreasonable in the public law sense, or procedurally unfair.  Having reached this decision, it is not necessary for me to consider the question of whether the Master’s decision is amenable to judicial review, or could be challenged by way of an appeal.

DISPOSITION

21.  None of the intended grounds of judicial review is reasonably arguable or has any realistic prospect of success.  Accordingly, the application for leave to apply for judicial review is dismissed.