NG CHIU YUEN JACOB v. LAM CHE CHEUNG

HCA 3364/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3364 OF 1999

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D E C I S I O N

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Introduction

1. This is the plaintiff's application for extension of time to appeal against the order of the Master dated 25 November 1999. The learned Master struck out the Amended Statement of Claim dated 27 September 1999 without dismissing the action. The defendant now applies to have it dismissed.

2. The history of this action relevant to the application can be summarized as follows.

The Earlier Application in the Lands Tribunal and the Appeal

3. On 21 February 1998, the plaintiff herein as the tenant applied to the Lands Tribunal for a new tenancy (NT 153 of 1998). After the Tribunal has granted a new tenancy, the parties appeared before the Tribunal for a determination of the rent to be paid under the said new tenancy. A determination was made by the Lands Tribunal on 14 August 1998. The plaintiff was dissatisfied with that determination and lodged an appeal with the Court of Appeal (CACV 242 of 1998).

4. In the Court of Appeal's Judgment dated 4 December 1998, it was observed that the plaintiff (tenant) complained inter alia that the defendant (landlord) relied on data supplied by a property agency which was fabricated or misleading; in short, the plaintiff said that the defendant obtained the Tribunal's decision by fraud. The plaintiff also complained to the Court of Appeal that the defendant placed a letter before the Tribunal which contained defamatory matter, the effect of which was to dispose the Tribunal unfavourably towards the plaintiff's case. All these complaints were disputed by the defendant in the Court of Appeal.

5. The Court of Appeal dismissed the said appeal on the ground that no point of law was raised by the plaintiff. The Court of Appeal went on to say the following in its Judgment dated 4 December 1998:-

"We have no desire to encourage further litigation between the landlord and the tenant, but we should point out that if the landlord has defamed the tenant, a remedy may be available to the tenant by an action for damages for defamation, and that if the decision of the Tribunal was obtained by fraud, an action would lie to set aside that decision. But these are not matters into which we can go ... " (at p. 3 of the transcript).

The History of These Proceedings Leading to This Application

6. The plaintiff commenced this action by issuing a writ on 1 March 1999. The Statement of Claim in essence sets out the plaintiff's complaints referred to above.

7. On 27 March 1999, the defendant took out an application asking inter alia for the writ herein to be struck out. After a hearing on 14 July 1999, the Master dismissed the striking out application but gave leave to the plaintiff to file and serve an Amended Statement of Claim stating clearly his allegations of fraud and defamation within 2 months.

8. On 1 September 1999, the defendant took out another application asking for the Statement of Claim dated 23 August 1999 be struck out on the ground that it has not been amended in accordance with the Rules of the High Court. The application also asked for the Statement of Claim to be struck out in essence pursuant to RHC Ord 18 r. 19.

9. It is unclear why the application of 1 September 1999 referred to a Statement of Claim dated 23 August 1999. In any event, that application was heard by the Master on 20 September 1999. According to an endorsement made by the Master on that summons, she ordered that it be adjourned to 5 October 1999 and the plaintiff was to file and serve a properly amended Statement of Claim by 4 pm on 30 September 1999. An Amended Statement of Claim which states that it was amended pursuant to the order of the Master of 20 September 1999 was filed on 27 September 1999.

10. On 5 October 1999 the defendant's said application was further adjourned to 25 November 1999. After a hearing on 25 November, the Master struck out the Amended Statement of Claim dated 27 September 1999 in effect pursuant to Ord. 18 r. 19. This order is the subject-matter of the plaintiff's present application.

Delay

11. The time within which to issue a notice of appeal against a master's order is 14 days: Ord. 58 r. 1(3). The present application was taken out about 1 months 3 weeks after the order of 25 November 1999. According to the plaintiff, the only reason for the delay was that he was waiting for a reply to his application for legal aid. I do not consider it necessary to elaborate on the matter further save to say that this is not in law a valid reason for the delay. There was therefore an undue delay of about 1 months 3 weeks.

12. Having so concluded, and following the approach in Finnegan v. Parkside [1998] 1 WLR 411 and Chiu Sin-chung v. Yu Yan-yan [1993] 1 HKLR 225, I now turn to deal with whether there are merits in the intended appeal to justify the exercise of my discretion to extend time for the appeal.

Merits of the Plaintiff's Application

13. Leaving aside the deleted parts, the Amended Statement of Claim dated 27 September 1999 consisted of about 18 pages. Despite its length and the awkward way of expression, it is tolerably clear that the plaintiff's case against the defendant is based on the following causes of action:-

(1) defamation;

(2) obtaining judgment by fraud;

(3) perjury.

In his skeleton submissions dated 12 December 2000, the plaintiff indicated that he would further "charge [the defendant] malicious institution and/or malicious falsehood" (see para. 22-23 thereof).

(1) The Defamation Claim

14. This part of the plaintiff's claim is related to the following:-

(1) the defendant's statements in the trial of NT 153 of 1998 and NT 256 of 1997;

(2) the defendant's statements to Amy Chow of the Office of the Privacy Commissioner for Personal Data ("the Privacy Commissioner");

(3) the defendant's allegations to the Social Welfare Department ("the SWD") through the hot line.

15. It is trite law that:-

(a) "unless there are good grounds for variance, the statement of claim should allege, in respect of each publication relied on as a cause of action, that the words were published by the defendant on a specific occasion to a named person or persons ... ": Gatley on Libel and Slander (1998) 9th Ed., para. 26.5, text to nn. 18 to 20;

(b) "In a libel the words used are the material facts and must therefore be set out verbatim in the statement of claim, preferrably in the form of a quotation: it is not enough to describe their substance, purport or effect ... 'A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of whose contents he is unaware ... ' ...": Gatley, para. 26.11, text to nn. 38 to 40;

(c) "The general principles governing the pleading of the actual words in libel also apply in slander. Thus, in slander the actual words spoken must also be set out verbatim 'in order that the defendant may know the certainty of the charge, and may be able to shape his defence'. It is not sufficient to allege that the slanderer used such-and-such words, or to that effect ... ": Gatley, para. 26.13.

16. It is obvious that the averments in the Amended Statement of Claim fall short of the above legal requirements. This pleading ought to be struck out on this basis alone.

17. That the plaintiff has no knowledge of the alleged defamation was made clear by what happened in this action after the Amended Statement of Claim was struck out by the Master on 25 November 1999.

18. In a Judgment handed down on 4 August 2000, I dismissed 3 applications taken out by the plaintiff. The applications were:-

(1) one on 28 February 2000 for a Miss Carmen Lam of the SWD and a Miss Amy Chow of the Privacy Commissioner to provide evidence before trial;

(2) one on 14 March 2000 for leave to issue a subpoena for the representatives of the SWD and the Privacy Commissioner to attend as witnesses in chamber hearing;

(3) one on 24 May 2000 for the defendant to produce documents and to answer questions set out in that summons.

19. The full reasons for the dismissal of those applications have been set out in the said Judgment and will not be repeated here. In short, I considered that the February 2000 and March 2000 applications were applications for leave to issue subpoenas for the purpose of chamber proceedings. I followed the approach of the Court of Appeal in To Kan-chi v. Pui Man-yau [1998] 3 HKC 371, 377-79 regarding the issue of subpoena generally and concluded that the applications amounted to a "fishing" exercise and were speculative. In relation to the May 2000 application, I found that the "interrogatory" and "discovery" asked for therein was also a "fishing" exercise.

20. The plaintiff sent a number of letters to court after the said Judgment was handed down. In a letter dated 25 November 2000, the plaintiff wrote:-

"In P.9 of your judgment, your [sic] state that; 'The Plaintiff has no idea as to what he was looking for precisely, or as to precisely what relevant information (if any) would be contained in the documents sought.' But it seems to me that after acquiring the information provided by Amy Chow from [the Privacy Commissioner], I knows [sic] precisely which letters I was looking for and the content of the letter (esp the letter from the defendant) ... ".

21. Both the plaintiff's aforesaid 3 applications and his letter show that this part of his claim contravenes the very legal principles set out above regarding defamation actions, that is, it is not permissible for a plaintiff who does not have knowledge of the alleged defamation to commence an action when he has yet to find the evidence to support his case.

22. I pause here to observe that even if the defendant had in fact defamed the plaintiff by making false complaints to the Privacy Commissioner and the SWD, the amount of damages would probably be minute. This is because the defamation would have been published to a handful of individuals. The investigation of the Privacy Commissioner and the SWD would have revealed the defamation was untrue.

23. Further to the above, the plaintiff's case regarding the defendant's allegedly defamatory statements made in the legal proceedings in the Lands Tribunal relate to 2 matters: his defamatory statements made at trial and those made in para. 4 of the "Form 7" filed by the defendant in NT 256 of 1997. NT 256 of 1997 was commenced by the plaintiff as the tenant. The said "Form 7" was filed therein on 6 October 1997 by the defendant as the landlord to oppose the grant of a new tenancy to the applicant and was therefore filed pursuant to Rule 69 of the Lands Tribunal rules, Cap. 17.

24. It is again trite law that:

"No action will lie for defamatory statements, whether oral or written, made in the course of judicial proceedings before a court of justice or a tribunal exercising functions equivalent to those of an established court of justice. 'The authorities establish beyond all question this: that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action for libel or slander lies whether against judges, counsel, witnesses, or parties for words spoken in the course of any proceedings before any court recognised by law ... ": Gatley, para. 13.3, text to nn. 20 to 21.

25. In relation to parties to litigations, it was specifically said:

"No action will lie against a party to an action for any defamatory statement made by him in any pleading, answer to interrogatories, or affidavit": Gatley, para. 13.14, text to n. 1.

26. I consider that the above principles apply to proceedings (including trial) before the Lands Tribunal and to the "Form 7" filed therein in relation to an application commenced in the Tribunal.

(2) The "Fraud" Claim

27. This part of the plaintiff's claim is in essence that the defendant had misled the Lands Tribunal at the trial in NT 153 of 1998 by fraud, that is, by presenting misleading average rental figures as comparables. Further, the defendant is said to have wrongly alleged at that trial that the plaintiff's rental information was fabricated and this severely damaged the plaintiff's credibility.

28. A perusal of the "Reasons for Decision" of the Lands Tribunal dated 14 August 1998 clearly shows that the Tribunal has not been misled. The relevant parts of that document read:-

"... Both parties ... agreed that the duration of the new tenancy agreement be one of 2 years.

... The [plaintiff] failed to adduce any evidence on rental comparables, whiles [sic] the [defendant] tendered a document ... in court, which contains information of rental comparables that the [defendant] obtained from the Internet address of the Centaline Property Agency Limited ("Centanet").

... I pointed out that there was a good deal of incompleteness concerning the rental data obtained from the Centanet. Thus, it could not be used as an important reference in the valuation process ... [2 main reasons were then given for the said observation]

... I told the [parties] that the Registrar of the Lands Tribunal had asked the Rating and Valuation Department for information on rental comparables for the subject premises ... I also stated that the case could be stood down for both parties to consider the relevant information before the hearing continued.

... The [parties] agreed to study the list of comparables ...

... I accepted the list of comparables for rent supplied by the Rating and Valuation Department as basis for determining the prevailing market rent of the subject premises ...[The Tribunal then set out the data used and the adjustments made thereto before making an assessment of the prevailing market rent of the subject premises]".

29. For this reason, it is plain and obvious that the allegations that the Judgment of the Lands Tribunal was obtained by the defendant's fraud is bound to fail.

(3) The Perjury Claim

30. Perjury is an indictable offence punishable under s. 31 of the Crimes Ordinance, Cap. 200. Even if the alleged perjury by the defendant be true,

(1) it should be dealt with in a criminal court and not a civil court;

(2) the proper procedure would be for a criminal prosecution to be instituted by the Secretary for Justice, if she sees fit to do so: see ss. 14(1), 15(1) and 17 of the Criminal Procedure Ordinance, Cap. 221. It is incorrect for a private citizen to commence a civil action in respect of such matters.

(4) The Proposed New Claims

31. As stated above, the plaintiff also submitted that he would charge the defendant for malicious institution (whatever that may mean) and/or malicious prosecution. Firstly, this has not been set out in the Amended Statement of Claim. Secondly, any such claim will plainly and obviously suffer the same (or similar) legal and other obstacles set out above.

Conclusion

32. For the above reasons, I find that the learned Master was entirely correct to order that the Amended Statement of Claim be struck out. Since leave to amend the plaintiff's pleading will not cure the obstacles set out above, this is not an appropriate case for leave to amend to be given to the plaintiff. The plaintiff's application is dismissed.

The Defendant's Application

33. It follows that after the Amended Statement of Claim has been struck out, there is no point in allowing this action to remain. I will therefore make an order for this action to be dismissed with costs to the defendant to be taxed if not agreed.

Costs

34. I will make a costs order nisi pursuant to Ord. 42 r. 5B(6) that the costs of these 2 applications are to be paid by the plaintiff. I will, if necessary, hear the parties as to whether those costs should be fixed pursuant to Ord. 62 r. 9(4)(b) in place of taxation.