LEUNG KAM CHUNG KENNETH v. COMMISSIONER OF POLICE

CAMP 80/2024, [2026] HKCA 1482

On An Intended Appeal From [2023] HKCFI 2377 &

[2024] HKCFI 842

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 80 OF 2024

(ON AN INTENDED APPEAL FROM HCA NO 1936 OF 2021)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Plaintiff’s renewed application to the Court of Appeal for leave to appeal against the order of Au-Yeung J dated 19 September 2023 (“the Order”) dismissing the Plaintiff’s application for further and better particulars of the Defence dated 23 November 2022.

2.  Having considered the papers filed in the present application and the parties’ written submissions, we consider that it is appropriate to determine the application on paper without an oral hearing, pursuant to Order 59, r 2A(5)(a) of the Rules of the High Court, Cap 4A.

BRIEF BACKGROUND

3.  As is well known, a series of public order events occurred in Hong Kong in 2019.  In this action, the Plaintiff claimed that he suffered loss and damage as a result of a fire outbreak allegedly caused by two tear gas submunitions shot into his clinic-cum-residence by police officer(s) operating along Austin Avenue, Tsim Sha Tsui, Kowloon, in the morning of 18 November 2019 following the occurrence of some public order events.

4.  By an action commenced by a writ of summons filed on 28 December 2021 in the High Court, the Plaintiff claimed against the Defendant for loss and damage allegedly suffered by him arising out of the aforesaid incident.  In his Statement of Claim filed on 26 October 2022, the Plaintiff quantified the amount of damages that he is claiming against the Defendant in the sum of HK$6,982,888.70.

5.  The Defendant denies liability for the Plaintiff’s claim on the grounds set out in his Defence filed on 23 November 2022.  For the purpose of dealing with the present application, it is not necessary to repeat the details of the Defendant’s grounds of defence to the Plaintiff’s claim in this judgment.

6.  By a summons dated 14 February 2023 (“the FBP Summons”), the Plaintiff applied for an order that the Defendant gave “further and better particulars”.  The requests for particulars were not set out in the FBP Summons or any document attached thereto.  Instead, the requests were set out in a document titled “Summons to Request the Defendant to Give Further and Better Particulars” (“the Request Document”) produced as “Exhibit A” to the Plaintiff’s Affirmation filed on 14 February 2023.

7.  The Request Document was an unorthodox document for seeking further and better particulars of a pleading.  Instead of identifying the relevant pleas in the Defence followed by the requests (or questions) for further and better particulars, the Request Document reads like a statement of facts or alleged facts and submissions intermingled with various questions which the Plaintiff wishes the Defendant to answer.

8.  The Request Document was summarized by the Judge at §40 of her decision dated 19 September 2023 ([2023] HKCFI 2377, “the Decision”) as follows:

9.  On 5 September 2023, the Judge heard the FBP Summons and two other summonses issued by the Defendant.  On 19 September 2023, the Judge gave the Decision in which she, inter alia, dismissed the FBP Summons with costs to the Defendant.

10.  In the Decision, at §§37 to 39, the Judge set out the relevant principles for an application for further and better particulars of a pleading, and at §41, the Judge refused to order the Defendant to give the “further and better particulars” sought by the Plaintiff for the following reasons:

“These are not legitimate reasons to seek FBP. Quite plainly, Mr Leung is unable to point to any lack of clarity on the part of the Defence, and there is in fact no lack of clarity. The FBP Request is simply not necessary for disposing fairly of the cause or matter or for saving costs. I therefore decline to order the Defendant to give particulars pursuant to the FBP Request.”

11.  By a summons filed on 24 November 2023 in the Court of First Instance, the Plaintiff sought leave to appeal against the Order.  The Judge refused to grant leave to appeal by her further decision given on 20 March 2024 ([2024] HKCFI 842, “the Leave Decision”).

THE PRESENT APPLICATION

12.  By a summons dated 2 May 2024 (“the Summons”), the Plaintiff renews his application for leave to appeal against the Order.  Four intended grounds of appeal (“Intended Ground 1” to “Intended Ground 4” respectively) are raised in a document titled “Skeleton Submissions on Grounds for the Proposed Appeal” attached to the Summons. 

DISCUSSION

Applicable principles

13.  Under s 14AA(4) of the High Court Ordinance, Cap 4, leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125, at §17.

14.  Where an appeal challenges a discretionary decision made by a judge at first instance (as in the present case), the Court of Appeal is particularly slow to interfere.  The Court of Appeal will only intervene if the judge plainly erred in principle, or the decision was clearly wrong: LYYC v CHL & CSMS [2019] HKCA 521, at §13; Re Cheung Kwan [2021] HKCA 282, at §§31-33.

15.  In the exercise of its discretion whether to extend time to appeal or apply for leave to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding if an extension of time is granted, and the degree of prejudice to the other party if the application is granted.  Where the delay is substantial and not wholly excusable, the applicant must show a real prospect of success on the merits, not merely a reasonable prospect of success: Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, at 129I.

Length of delay and explanation for delay

16.  In the present case, the Order was made on 19 September 2023.  The deadline for seeking leave to appeal in the court below expired on 3 October 2023, but the application for leave to appeal was not made until 24 November 2023.  The Judge considered the Plaintiff’s delay of 7½ weeks to be substantial and inexcusable, for the reasons set out at §§7 to 11 of the Leave Decision.  We agree with the Judge’s view on this matter.

17.  Under Order 59, r 2B(3) of the Rules of the High Court, the Plaintiff’s further application for leave to appeal ought to have been made to the Court of Appeal within 14 days from 20 March 2024 (being the date of refusal of leave to appeal by the Judge), ie on or before 3 April 2024, but the Summons was only issued on 2 May 2024.  The Plaintiff’s explanation for this further delay is that he had in fact prepared a “Summons with Exhibits and lodged them to the Clerk at the Court of Appeal” on 30 April 2024, but the documents failed to comply with the requirements in respect of “spacing” (prescribed by Practice Direction 4.1), and he had to re-submit the application later.  The Plaintiff’s explanation for the further delay is not acceptable, because by 30 April 2024, he was already out of time to make the present application by some 27 days.

18.  In our view, the Plaintiff’s delay in seeking leave to appeal is substantial and inexcusable.  It follows that, in order to obtain leave to appeal, the Plaintiff has to show that his intended appeal has a real prospect of success on the merits.

Merits of the intended appeal

(i)  Intended Ground 1

19.  Under Intended Ground 1, the Plaintiff contends that the Judge “made False and Misleading Statements in her Judgment and based on such False and Misleading Statements to support her Decision” [sic].

20.  The Plaintiff’s complaint relates to the following statement by the Judge at §17 of the Leave Decision:

“With respect, whether the Plaintiff was requesting for further and better particulars was a matter of substance and not syntax or wording. I have already in §§40-41 of the Decision explained why I considered the Plaintiff’s requests not to be for further and better particulars but concerned evidence and/or amounting to cross-examination in disguise, statement of facts and/or submissions. The Plaintiff has not shown how this Court’s view of his requests violated the principles in paragraph 3 above. The Defendant’s different view of the Plaintiff’s requests based on authorities cited in §39 of the Decision could not amount to perjury. The Perjury Ground has no real prospect of success.”

The authority that the Judge referred to at §39 of the Decision was Nu Pharm Limited (卡士蘭有限公司) v Champ Group Limited (智盟有限公司) & Ors [2021] HKCFI 751.  The Plaintiff argues that there was no mention or reliance on perjury in that case, and alleges that the Judge made false and misleading statements in that what the Judge referred to as authorities on perjury in fact did not relate to perjury at all.

21.  In our view, the Plaintiff’s argument is based on a misreading or misunderstanding of §17 of the Leave Decision.  In that paragraph, the Judge said that the Defendant’s submission on the nature of the Plaintiff’s requests, which submission was based on the authorities referred to at §39 of the Decision, could not amount to perjury as alleged by the Plaintiff.  Those authorities were cited in support of the view that “[t]he Court would refuse to order particulars where the requests concern matters of evidence, amount to cross-examination in disguise, or are beyond [the] scope of the averments”.  They were not cited as authorities on perjury.  We do not see how it can sensibly be argued that the Judge made any false or misleading statement. 

(ii)  Intended Ground 2

22.  Under Intended Ground 2, the Plaintiff argues that the Judge “did not refer a serious and yet a highly suspicious issue of Crime of Perjury … committed by the defendant to the Police for investigation in accordance [with] the previous precedents”[sic].

23.  This ground is misconceived.  The alleged perjury stems from the skeleton submissions of counsel for the Defendant filed in opposition to the Plaintiff’s application for further and better particulars.  In those submissions, the Defendant’s counsel contended that “[t]he Plaintiff is not requesting Further and Better Particulars Relevant to the Issues Pleaded in the Defendant’s Defence”, while the Plaintiff maintained that he was seeking further and better particulars of the Defence[1].

24.  In our view, what counsel for the Defendant contended was merely his submission in response to the Plaintiff’s application, and cannot be characterized as “perjury”.  As a matter of fact, counsel’s said contention was accepted by the Judge[2].

25.  In any event, leaving aside the fact that the allegation of perjury against the Defendant has no validity whatsoever, it is important to bear in mind that the Judge was only dealing with an application for further and better particulars.  She was under no duty to refer any matter to the police for investigation.  Neither would it be appropriate for the Judge to do so at an interlocutory stage where there was no finding of any perjury by the Defendant.

(iii)  Intended Ground 3

26.  Under Intended Ground 3, the Plaintiff alleges that the Judge “acted in a very controversial manner, contradicting her own words and concept.  As such, she made very illogical and erroneous Decisions in her Judgment” [sic].

27.  The Plaintiff makes 2 points in support of this ground.  First, the Plaintiff suggests that his application has received the “blessings” from Master Ho.  This suggestion is based on an incorrect understanding of the order of Master Ho dated 13 December 2022.  All that Master Ho ordered was that “[t]he Plaintiff do on or before 15 February 2023 take out applications for further and better particulars … if he sees proper”.  Master Ho did not express any view on the merits of the Plaintiff’s application.

28.  Second, the Plaintiff argues that the Judge wrongly regarded the particulars that he was seeking as evidence in disguise, instead of further and better particulars of the Defence which he was entitled to obtain from the Defendant.  We agree with the Judge’s analysis of the nature of the Plaintiff’s requests at §40 of the Decision.  Essentially, the Plaintiff disagrees with the Defendant’s case, and wishes to interrogate the Defendant on the issues mentioned at §18 of the Leave Decision, namely:

“(1) How come ‘the police has no knowledge as to how the two tear gas submunitions broke through one of the windows as alleged’?

(2) How come the police did not notice the outbreak of fire until being informed by passers-by and why the police acted with delay, resulting in loss of time in contacting the Fire Services Department (‘FSD’)?

(3) How come the Commander did not have the important professional foresight to take precautions to have the FSD stand by when the constables had to fire tear [gas] submunitions in a crowded and heavily populated area?

(4)  Why the sub-munitions were fired upwards towards the building instead of pointing towards the ground.”

The Judge was correct to hold that the Plaintiff’s requests were for “evidence and/or cross-examination in disguise”, and not for further and better particulars of any relevant pleas in the Defence.

(iv)  Intended Ground 4

29.  Under Intended Ground 4, the Plaintiff alleges that the Judge “put words into [his] mouth, forcing her heavily biased opinion onto [him] as the Plaintiff, [twisting] issues around and asserted that they were coming out from [his] mouth is really sad and unfortunate.  Henceforth what she wrote were totally against [his] will and intention.  The learned Judge also tried to mitigate the serious and highly suspicious issue of the Perjury Crime so committed by the Defendant with firm written evidences ‘Pleas’ and the Defendant’s adoption of a submission prepared by his defence counsel” [sic].

30.  The statements in the Decision/Leave Decision that the Plaintiff complains of are the following:

(1)  §4 of the Decision –

“I wish to add that those allegations are targeted at pleas in the Defence that cannot be summarily determined in the present interlocutory applications”.

The Plaintiff takes exception to the word “pleas” in this statement, saying that he “certainly did not [regard] such serious and highly suspicious issue of Perjury Crime so committed by the Defendant as ‘pleas’”.

(2)  §16 of the Leave Decision –

“The Plaintiff does not accept the Defence. I have held in the Decision that issues on perjury is for the trial judge and not for interlocutory application. The Plaintiff asserts that the Defendant committed perjury by reason of his adoption of the skeleton submission prepared by defence counsel to resist his FBP Summons (‘D-SKS’). The Plaintiff fixates on various sentences in D-SKS which stated that ‘the Plaintiff is not requesting Further and Better Particulars Relevant to the Issues Pleaded in the Defendant’s Defence’. He asserts that he precisely was seeking further and better particulars ‘of the Defence’ but the Defendant denied it.”

The Plaintiff takes exception to the suggestion that the Defendant’s perjury was based on his “adoption” of a document prepared by defence counsel, arguing that “counsel only takes instruction from the Defendant, and the Defendant must read through the document so prepared for him for filing before it is lodged to the Court.  So it was by no means an ‘adoption’”.

31.  In our view, the complaint that the Judge put words into the Plaintiff’s month is baseless:

(1)  In respect of the statement at §4 of the Decision referred to at §30(1) above, the Judge was merely observing that the Plaintiff’s allegations of perjury against the Defendant were targeted at various pleas in the Defence.  We consider the Judge’s observation to be correct.

(2)  In respect of the statement at §16 of the Leave Decision referred to at §30(2) above, as mentioned above, the Plaintiff’s complaint of perjury relates to the submission made by counsel on behalf of the Defendant that “the Plaintiff is not requesting Further and Better Particulars Relevant to the Issues Pleaded in the Defendant’s Defence”.  Granted that the Defendant is responsible for the submission made by counsel (on the assumption that such submission was made upon the instruction, and/or with the consent or approval, of the Defendant), we do not see how or why the Judge could or should be faulted for stating that the Plaintiff’s allegation of perjury against the Defendant was by reason of his “adoption” of counsel’s submissions.

(3)  On analysis, both complaints raised by the Plaintiff have no substance, and are based on an unreasonable reading of the Judge’s statements.

32.  In conclusion, the Plaintiff’s intended grounds of appeal are all completely misconceived and have no prospect of success, still less real prospect of success.  Neither do we see any other reason in the interests of justice why the appeal should be heard.

DISPOSITION

33.  The Summons is dismissed with costs to the Defendant, to be summarily assessed.  In view of the complete lack of merits of the application and the fact that the Plaintiff has made serious but baseless allegations against the Judge, we order the Defendant’s costs to be assessed on an indemnity basis.

34.  For the purpose of summary assessment of the Defendant’s costs, the Plaintiff shall have leave to file and serve a statement of objections (limited to 2 pages) to the Defendant’s Statement of Costs for Summary Assessment dated 22 July 2024 within 14 days from the date of this Judgment.

35.  In view of the fact that the Plaintiff’s application is totally without merit, we make an order, pursuant to Order 59, r 2A(8) of the Rules of the High Court, that no party may request the present determination to be reconsidered at an oral hearing inter partes.

[1] See §16 of the Leave Decision.

[2] See §§40-41 of the Decision, and §17 of the Leave Decision.