YU SAU NING HOMER v. WONG WAN KEUNG AND OTHERS

DCCJ 313/2016

[2018] HKDC 1099

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 313 OF 2016

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DECISION

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1.  I refuse the defendants’ application to re-amend their defence as per the draft attached to their summons taken out last Wednesday, on 29 August 2018. Slight modifications were made to that draft in the revised version handed up to the court this morning.

2.  I consider that the following matters are material considerations relevant to the application. 

First matter: The current drafting is unsatisfactory

3.  The drafting of the defendants’ current pleading, ie the amended defence, is unsatisfactory.  Although settled by counsel, it is replete with typographical errors and use of improper or awkward phrases and terms.  As an illustration, the incorporated owners of the building known as Yue Cheung Centre in Fotan is defined as the “IO” in para 2.  The term “IO” therefore denotes a legal entity, separate from the owners of the individual units in the building.  Yet in the ensuing paragraphs, the term “IO” is apparently used to refer to the individual owners.  See, eg:-

(1)   Para 12a – “some IO of the Building and committee member had been complaining …”

(2)   Para 12e – “In about November 2015, increasing IO begin to ask the Defendants and the Plaintiff about the apparent unfair handling of the upcoming election …”

(3)   Also in para 12e – “Many IO of the building also asked the Defendants to comment on the integrity and character of the Plaintiff …”

4.  On the one hand, the drafting is unclear as one is left to scratch one’s head as to what the phrases “many IO”, “some IO” and “increasing IO” mean. Yet, on the other hand, if one is to keep a pragmatic perspective about the matter, one can readily supply the mental link that the reference to “IO” must be taken to mean “owners”, although the phrase “increasing IO” (or “increasing owners” as appearing in the proposed amendments) still remains very much a mystery.

5.  The drafting of the amended defence is also unsatisfactory in its organisation.  It is poorly structured.  As a defence to a defamation claim where defences of justification, fair comment and qualified privilege are raised, it is expected that the pleading should be properly structured so that a reader can readily work out what facts are being relied on in support of each of the defences.  But that is not the case with the amended defence.  For instance, in para 5 where justification is pleaded, it refers in sub-para (6) to “particulars of which are stated in paragraphs below”.  No specific cross-references are provided.  So, on the one hand, it may be said that no clear particulars are pleaded.  On the other hand, however, it is arguable that all the particulars given in the rest of the pleading are relied upon by the defendants in respect of the defence of justification.

Second matter: The purpose of the proposed amendments is to clarify

6.  Ms Candace Fong, counsel for the defendants, submits repeatedly and emphatically this morning that in light of the mistakes in the current form of the pleading, the defendants propose to amend just to clarify ambiguities in the amended defence, if there are indeed any.  (For instance, some of the references to “IO” are proposed to be changed to “owners”.  And cross-references to paragraphs are proposed to be added.)  She emphasises that no new case is put forward and nothing material is added.  As such, the amendments should not cause any prejudice to the plaintiff and the defendants are prepared to bear costs occasioned by the amendments.  It must be remembered, she submits, that Order 20, rule 5 of the Rules of the District Court empowers the court to grant leave to amend “at any stage of the proceedings”.

7.  Towards the end of her reply submissions, she says that it is not right for the court to disallow the defendants to clarify their case.  Where there is a typo, the defendants would want to correct it.  Ms Fong asks rhetorically, “What’s wrong with that?”  In fact, she says that the defendants are really trying to clarify their case for the plaintiff and therefore the court cannot refuse the amendments.

Third matter: The amendment application is late despite criticisms made by the plaintiff at an early stage

8.  The unusual feature of the application is not only that it is made very late, just two weeks before the trial, and the defendants have offered no explanation as to its lateness.  It is also that the deficiencies and unclear areas as apparent in the amended defence have been pointed out very early on, namely in the plaintiff’s amended reply filed in October 2017.  Nothing was apparently done by the defendants to address their minds to the criticisms.  In their listing questionnaire filed in November 2017, the defendants confirm that the pleadings are in order and require no amendment.  Then, at the pre-trial review held on 25 June this year, when I asked for an outline of the factual disputes between the parties (and there appeared to be many), the plaintiff repeated the same criticisms concerning the state of the amended defence.  And at that juncture, Ms Fong then indicated that in light of that, the defendants would apply to amend. Of course, no draft re-amended defence was produced at the pre-trial review as the thought of amendment seemed very much “reactive” and clearly did not come about as a result of any considered deliberation on the part of counsel.

9.  Yet, notwithstanding counsel’s indication at the pre-trial review and not until after the lapse of two months’ time did the defendants take out a summons on 20 August seeking leave to amend.  But surprisingly, the draft attached to that summons was shortly to be replaced by yet another draft attached to the summons taken out on 29 August.  Ms Fong’s explanation to this is that after seeing the plaintiff’s opening submissions, which attack the defendants’ pleading in a number of ways, she saw fit to submit yet another draft.

10.  Worse still, the final draft before me still contains typos.  It still remains difficult to read.  In her written opening submissions, Ms Fong confirms that the defendants will no longer pursue the defence of justification, as currently pleaded in para 5 of the amended defence.  It is therefore not understood why the defendants are still pursuing the various amendments to para 5 which defence they have expressly abandoned.

11.  When one takes a step back and considers the history of the proceedings as a whole, the inevitable conclusion is that the defendants’ conduct of the case, through their counsel, is not only unsatisfactory, but is alarming, disturbing and frustrating.  It displays a blatant disregard of one of the underlying objectives of the CJR – to ensure the case is dealt with as expeditiously as is reasonably practicable.  I would also say that the defendants, through counsel, have shown no serious or genuine attempt to address the issues which are apparent in their pleading.

12.  There is ample authority confirming that delay alone, coupled with the lack of explanation, is sufficient ground in itself to justify a refusal of a late amendment application.  See, eg, Li Xiao Yun v China Gas Holdings Ltd HCCL 18/2011, 8 March 2013, at para 13; Waddington Ltd v Chan Chun Hoo Thomas HCA 3291/2003, 7 May 2013, at para 34.

13.  The present case presents an even worse situation in that the defendants, through counsel, have displayed a casual and cavalier attitude about the amendments.  Counsel even had the audacity to suggest in open court that the defendants are really putting in the amendments for the plaintiff.  In the present circumstances, in view of the persistent disregard by the defendants, through counsel, of the CJR rules and spirit, to allow the defendants to proceed with the amendments would be to make a complete mockery of the civil justice system.  It would not be an exaggeration to say that to allow the amendments would bring the whole system into disrepute so as to render it unworkable.

Fourth matter: Substantive rights of the parties are not affected

14.  Having said the above, I must bear in mind that in an amendment application, the court must consider the impact on the substantive rights and obligations of the parties by allowing or disallowing the proposed amendments.

15.  Here, as Ms Fong repeatedly emphasises, the amendments are for clarification only and there is no new or material matter which is to be added.  As such, I do not see in the circumstances why the amendments should be allowed at this late stage.

16.  I would only add that relatively speaking, the more substantive amendment is in para 10 in which the defendants propose to insert their own plea of the meaning of the two allegedly offending letters (for the first time in these proceedings).

17.  In the current pleading, the defendants deny the meanings pleaded by the plaintiff in his statement of claim.  But, at today’s hearing, Ms Fong says the defendants take a neutral stance on the meaning of the words.  Yet, the defendants now propose to put in their own interpretation of the words.  I have to say that I cannot make much sense out of all these.

18.  In any event, the defendants’ meaning as set out in the proposed amendments are in fact very similar to the plaintiff’s pleaded meaning but to a lesser defamatory extent.  It is not the case where the defendants allege a different meaning altogether so that that meaning must be precisely pleaded. Here, throughout these proceedings, the defendants have pursued the defences premised on the plaintiff’s pleaded meaning.  I am not sure what exactly the defendants’ final position is on the issue of meaning in view of Ms Fong’s latest submissions.  However, even if the defendants now take the stance that the words bear a lesser defamatory meaning but of the same nature as that pleaded by the plaintiff, it is unnecessary for them to now plead the lesser meaning[1]. As accepted by the plaintiff, it is always open to the defendants to make submissions in this regard as they see fit.

Conclusion

19.  Having taken into account the above matters, I refuse the defendants’ application for leave to amend the amended defence.  I would dismiss both of the defendants’ summonses.

(Discussion on costs)

20.  The plaintiff do have costs of the two summonses, to be taxed on an indemnity basis if not agreed, with certificate for one counsel.