XCHRX SOHAN STANLY SHIU KEUNG v. SZE WAN FUNG AND OTHERS

HCA 4589/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4589 OF 1993

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J U D G M E N T

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1. This is the Plaintiff's appeal against the orders of Master Kwan of 15 November 1999 when she dismissed the Plaintiff's claim herein against the 2nd and 3rd Defendants respectively.

2. The Plaintiff's claim can be summarized as follows. He was the registered owner of a residential unit at Village Road, Hong Kong. The Plaintiff alleged that sometime between March 1992 and June 1992, the 1st Defendant misled him into signing a document which the Plaintiff believed was merely to evidence he had borrowed money from the 1st Defendant and that the unit was to be provided as security for the loan.

3. The 2nd Defendant was a clerk employed by the 3rd Defendant which was a firm of solicitors. The Plaintiff alleged that in about June 1992, the 2nd Defendant fraudulently misrepresented to him that the documents he signed at the 3rd Defendant's offices were mere formalities regarding the provision of the unit as a security for the loan when in fact the documents were respectively a sale and purchase agreement and an assignment relating to the unit. In his Statement of Claim, the Plaintiff alleged that he discovered the true position in about October 1992.

4. The Writ herein was issued on 26 May 1993. Defences were filed by the 2nd and the 3rd Defendant in August 1993 and October 1993 respectively. 3 Notices of intention to proceed were filed in February 1996, September 1997 and September 1998 respectively. However, apart from:-

(a) taking out an application for an extension of time to file and serve a Reply in September 1998 and October 1998 (which were respectively withdrawn and dismissed);

(b) taking out an application for summons for directions in November 1998 (which was adjourned sine die),

no other steps were taken by the Plaintiff.

5. In these circumstances, the 2nd Defendant and the 3rd Defendants took out their respective applications for the dismissal of the Plaintiff's action for want of prosecution in July 1999 which resulted in the learned Master's said orders of 15 November 1999. The Defendants contended that there had been inordinate and inexcusable delay and that serious prejudice is likely to be caused to their case in the trial of this action.

6. In an affirmation filed by Madam Chow Sin Yee Cindy (the Plaintiff's wife) dated 5 August 1999, the Plaintiff sought to explain the delay by relying on the following matters:-

(a) the Plaintiff did not file a Reply earlier because he was waiting for the result of his complaints to the police and the ICAC. He had wished the authorities would take action against the Defendants: see paragraphs 6 to 11, especially paragraph 11, thereof;

(b) the Plaintiff suffered a stroke and was only discharged from hospital in July 1997;

(c) the Plaintiff suffered a high fever and was hospitalized from 30 June 1999 to 28 July 1999.

7. I do not consider the matter put forward by the Plaintiff at point (a) above to be a valid reason for him not to expedite these proceedings. Further, the Plaintiff has been vague as to the time when he was informed of the refusal by the authorities to proceed with the complaint. The same observation can be made regarding the period of his hospitalization for his stroke (point (b) above). In order to clarify these matters, I asked the Plaintiff about these dates. It turned out from what the Plaintiff (and Madam Chow) told me during the appeal hearing that both complaints to the police and the ICAC were in fact made before the commencement of the action. There was a date "30/05/97" appearing on the medical chit from Rittanjee Hospital (exhibit "CSY-1" to Madam Chow's affirmation). The Plaintiff informed me that he was hospitalized a few days before that date.

8. Taking all the circumstances into account, I find that there was a post-writ delay:-

(a) from about October 1993 (the time when the 3rd Defendant filed his defence) to about 30 May 1997;

(b) from 10 July 1997 (the date of exhibit "CSY-1") to about July 1999 (the date of the Defendants' application for dismissal);

which was a total period of about 5 1/2 years. The only reason given at the hearing by the Plaintiff and Madam Chow for such period of inactivity was that they trusted the Plaintiff's former lawyers but the lawyers let them down. I do not find this to be an adequate explanation and consider this period to be a period of inordinate and inexcusable delay. As stated earlier, 2 or 3 interlocutory applications have been made on the Plaintiff's behalf. However, from the way in which they were proceeded with I do not consider these to have been real attempts of furthering the progress of this action.

9. The time limitation period applicable to the Plaintiff's claim is 6 years and, according to the averments in his Statement of Claim, this should have started to run from October 1992. It therefore expired by about October 1998.

10. As regards the question of prejudice to the 2nd and 3rd Defendants, I note that the Plaintiff's allegation of fraudulent misrepresentation was denied by both Defendants. I agree with the argument of the defence that according to the 2nd and 3rd Defendants, the transaction in question must have been yet another conveyancing transaction. Whether or not the Plaintiff's allegation or the defence version is established is very much dependant on the oral testimony of the witnesses and their creditability. I am entitled to and do infer that the witnesses' memories must have been impaired by the delay. There is a substantial risk that because of the impaired memory of the witnesses, a fair trial may not be possible.

11. Other matters have been set out in a Chinese note handed to me by the Plaintiff at the beginning of the appeal, I do not find these matters to be of substance.

12. For the above reasons, I agree with the conclusion and the orders of the learned Master. The appeal is therefore dismissed.