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 two applications made by the plaintiff:-

(a)	a summons taken out on 23 October 2006 asking the court to delete one sentence from the judgments handed down earlier;
(b)	dates be fixed for the trial of this action.

2.  The background leading to these applications, and the nature of this action, has been set out in quite a few judgments or decisions handed down earlier and will not be repeated.

Summons Taken Out on 23 October 2006

3.  The plaintiff alleges that one sentence appearing in para. 5 of the judgments handed down respectively on 8 August and 10 August 2006 (“the August judgments”) is misleading and asks for it to be deleted.  The sentence reads:-

“An appeal to the court of appeal by the plaintiff also turned out to be unsuccessful”.

4.   The plaintiff contends that that sentence is misleading because, according to him:-

“Plaintiff was successful in obtaining an order to have overruled the order dated 29 January 2005 in part” (skeleton submission dated 10 November 2006).

5.  This application can be dismissed for various reasons, but the most important one is that the sentence is not misleading when it is read in the proper context.

6.  The plaintiff complained earlier that the trial of this action has been delayed.  There was a need in the August judgments to set out the matters which caused the delay.  The said appeal was one of those matters.

7.  The outcome of the plaintiff’s said appeal has been succinctly stated in para. 13 of the court of appeal’s judgment dated 18 July 2005:-

“…In view of the fact that the plaintiff has not been successful on this appeal on many of the amendments and those amendments that have been permitted were almost all different amendments from those sought below, I consider that the costs of this appeal should be the defendants’ costs in the action” (emphasis supplied) (per Rogers VP).

It is therefore quite correct to say that the plaintiff has been unsuccessful in that appeal when looked at in the round.

8.  Hence, I do not consider there is any merit in this application.

Fixing Trial Dates

9.  The recent progress of the pre-trial review herein has been set out in the reasons for decision handed down on 8 September 2006 as follows:-

“The first pre-trial hearing took place on 30 November 2004.  It has been adjourned and restored several times since then.  At the end of the pre-trial review hearing on 19 May 2006, several directions were given.  The one concerning trial bundles became the subject-matter of dispute at the hearing on 4 September 2006”.

10.  The plaintiff desires this action, being a claim in respect of libel, to be tried by a judge together with a jury: s. 33A(1), High Court Ordinance (Cap. 4).

11.  It is trite law that juries should decide the dispute before them based only on admissible evidence.  Inadmissible materials should therefore be excluded from their knowledge: Phipson on Evidence (2005) 16^th Ed., para. 11-68.  The court of final appeal has also made some observations about the supply of written directions to the jury: Albert Cheng and Another v. Tse Wai Chun Paul [2001] 1 HKLRD 191, para. 4 to 8.

12.  Such being the case, the proper preparation of trial bundles becomes even more important; inadmissible materials should not be included in trial bundles which are intended for use by the jury.

13.  This has been explained to the parties (in particular the plaintiff) during one of the court hearings.  In fact, in a letter dated 3 August 2006 from the defendants’ solicitors, the defendants indicated separate trial bundles would be compiled for the trial judge and the jury; respective indices for two trial bundles have been enclosed.

14.  But the plaintiff insisted on dates being fixed for trial before trial bundles are prepared.  At the end of the hearing on 4 September 2006, I directed inter alia that he was to lodge with court and serve an index (or indices) for the trial bundles for use by (a) the trial judge and jury, and (b) the trial judge only.  Reasons for the decision were handed down on 8 September 2006.

15.  Despite this, the plaintiff showed little sign of cooperation in regard to the preparation of trial bundles.

16.  Shortly before the hearing of this application, the plaintiff attached to the skeleton submission dated 10 November 2006 an index for one trial bundle, which consists of 3 items of pleadings and 11 items of witness statements.  Further, a trial bundle was lodged with court shortly before the hearing of this application.  It has about 300 to 400 pages and is not paginated.

17.  I pause to note that out of those witness statements, 3 came from the plaintiff himself (totalling about 100 pages).  There have been substantial amendments to the parties’ pleadings.  In view of this, earlier I indicated to the parties it would be more convenient for trial purposes for them to file and serve witness statements which in effect “consolidate” the contents of all witness statements previously filed and served.  The plaintiff obvious does not share that view.

18.  But apart from the items set out in para. 16 above, the trial bundle in fact also contains contemporaneous documents (presumably to be referred to by the witnesses at trial); these have been included as attachments to the witness statements concerned.  I estimate that they take up over 100 pages of the bundle.

19.  More importantly, there is no indication which part(s) of the bundle will be used by the jury, nor how the inadmissible part(s) of the bundle can be kept away from the jury’s attention.

20.  When some of these inadequacies were raised with the plaintiff at the hearing of this application, he responded negatively saying that he left it to the court to decide on the matter.

21.  Further, when being asked if the contemporaneous documents in his proposed trial bundle were the same as those set out in the defendants’ proposed indices, he confirmed they were (defence solicitor however disagreed with this).

22.  In these circumstances, I indicated to the parties at the hearing of this application my preference for the trial bundles proposed in the said letter of the defence.

23.  For reasons not apparent to me, the parties were reluctant to undertake the actual work of preparing the trial bundles after my said indication.  The deadlock partly disappeared when the plaintiff lodged with court (on 17 November 2006) a new bundle of documents (apparently prepared in accordance with the index to the defendants’ proposed bundle B).

24.  As regards trial bundles, therefore, only the defendants’ proposed bundle A is now outstanding.  The adjourned pre-trial review can be restored after the last-mentioned trial bundle has been lodged with court and served by the plaintiff.

25.  To assist the parties’ preparation for the adjourned pre-trial review hearing, I should indicate that two other matters may need to be considered at that hearing.

26.  First, the plaintiff has earlier issued and served over 20 subpoenas.  They have been set aside on 30 November 2004.  It is unknown if he still intends to issue these subpoenas, and if so, if it is appropriate to do so.

27.  Two, in view of the contents of the pleadings and the witness statements (in particular the plaintiff’s), it may be necessary to consider whether this action falls within one of the qualifications in s. 33A, Cap. 4 which (among other things) provides:-

“… the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents … which cannot conveniently be made with a jury”.

Conclusion

28.  The plaintiff’s said summons is dismissed.

29.   The pre-trial review hearing is yet again adjourned (see para. 24 above).

Costs Order Nisi

30.  The plaintiff has in effect been unsuccessful.

31.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the said summons and of the hearing on 14 November 2006 be paid by the plaintiff to the defendants.