KWAN KAM PING v. ANGEL FACE BEAUTY CREATIONS (INTERNATIONAL) LTD

DCPI 426/2020

[2025] HKDC 540

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO 426 OF 2020

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DECISION

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1.  This is the PTR for a trial scheduled to start on 27 May 2025.

2.  The plaintiff (“P”)  acts in person.  Bobby Tse & Co Solicitors act for the defendant (“D”).  Whilst this decision is being read in English, I shall also be explaining it to P orally, in Cantonese, myself.

3.  What prompted me to read this decision in English was a letter from Bobby Tse & Co Solicitors to me dated 21 March 2025 which was in English.  Its third and fourth paragraphs read: -

“We note that the Plaintiff has not prepared a Pre-Trial Review bundle in accordance with paragraph 129 of Practice Direction 18.1. Since our client has not been ordered nor directed to prepare and lodge a Pre-Trial Review bundle, nor would our client be required to lodge one under the said Practice Direction, we are instructed by our client not to lodge a Pre-Trial Review bundle.”

4.  In my view, that letter was outrageous.

5.  Whilst it is obviously true that ordinarily speaking, all bundles are to be prepared by the plaintiff or applicant and that rule does not change just because that party chooses to act in person, Bobby Tse & Co Solicitors seemed to have forgotten that as officers of the Court, their paramount duty to assist the Court overrode their client’s instructions.

6.  If an authority is needed for that proposition, they can simply read JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (§29, DHCJ Herbert Au-Yeung), which reads: -

“Practitioners are reminded once again that their duty to the Court prevails over their duty to their lay client.”

7.  What His Lordship said was not new – hence the reference to it being a reminder.  In literally all common law jurisdictions, it has always been the law that lawyers owe their paramount duty to the Court itself, and that duty overrides their client’s instructions.

8.  Decades ago, in Judge David Andrew Ipp, “Lawyers’ Duties to the Court” (1998)  114 LQR 63, the author said this: -

“Duties of various kinds are imposed on those who practise the legal profession. Lawyers have to comply with ethical duties which are usually laid down and supervised by professional bodies empowered by statute to regulate and monitor the profession… In addition, lawyers owe duties to ‘the court’. This does not mean that duties are owed to a particular judge. On the contrary, duties of this kind are in reality owed to the larger community which has a vital public interest in the proper administration of justice. That public interest is indeed the source of these duties; and the court, in enforcing them, is acting as trustee and guardian of the due administration of justice. For that reason, since time immemorial, the courts have assumed the inherent power to impose those duties. The underlying principle is that ‘the court has a right and duty to supervise the conduct of those appearing before it, and to visit with penalties any conduct of a lawyer which is of such a nature as to defeat justice in the very cause in which he is engaged professionally’. Accordingly, duties owed by lawyers to the court are legal duties imposed by the general law. They are personal in nature and cannot be delegated.”

9.  I agree.  Since duties owed by lawyers to the Court are part of the general law they do not have to be explicitly stated in practice directions or judicial directions.  The duty to be courteous, for example, is so obvious it does not have to be mentioned in any Court order.  The same can be said of the duty to assist.  Any law firm’s duty to assist the Court starts from the moment it filed its first document into Court, and does not end until it gets off the record.  In Hong Kong, Order 1A rule 3 of the Rules of the District Court (Cap 336H), like its counterpart in the Rules of the High Court (Cap 4A), reads as follows: -

“The parties to any proceedings and their legal representatives shall assist the Court to further the underlying objectives of these Rules.” [Emphasis added]

10.  Commenting on the above statutory duty, the editors of HKCP 2025 said this (§1A/0/11): -

“The express statement of this duty is very important. The court can be expected to criticise strongly parties and their legal representatives if they materially fail in this duty, and to impose costs penalties where appropriate.”

11.  Irrespective of practice directions or Court directions, before any hearing in any Court, any law firm on record should be thinking “what should we do to maximize the assistance we can provide to the Court”, and not “can we get away with doing nothing by blaming our opponent”.

12.  In our present case, P seems to be a full-time homemaker born in the Mainland in 1963.  At least one of her letters to the Court was hand-written. Irrespective of whether P should be blamed for not producing and lodging paginated hearing bundles, it was wholly unrealistic for Bobby Tse & Co Solicitors to expect the Court to be seeking assistance from P instead of from them.  Bobby Tse & Co Solicitors should be thinking “what should we do to maximize the assistance we can provide to the Court”, and come to the obvious conclusion that they should prepare, lodge and serve full and proper PTR Bundles plus PTR Submissions, in addition to their Appendix G, irrespective of the position under practice directions or Court directions, because that would be their basic duty under the general law.  The fact that they did not even attempt to discharge that basic duty automatically on their own motion, or were contemplating “following” inappropriate instructions from their lay client, was a major cause for concern.  As this PTR was listed for 2 hours, Bobby Tse & Co Solicitors certainly had no excuse for thinking this Court may do away with proper bundles.

13.  To be fair to Bobby Tse & Co Solicitors, on my clerk drawing their attention to JTM324, PTR Bundles and PTR Submissions were then lodged by them on 24 March 2025, and I have read them.  They are helpful to the Court.  Whilst it is most regrettable this only occurred after a written warning, I do not intend to take any further step in relation to this.  I should add that even D’s Appendix G was late and this was a non-compliance with §128 of Practice Direction 18.1.  At the end of the day this delay caused no real prejudice or harm.  I therefore do not intend to take any further step in relation to this either.

14.  It is to be hoped that all solicitors can stop blaming opponents (represented or unrepresented) and focus on assisting the Court.  Bickering is childish, unbecoming and unhelpful.

15.  All things considered, I make the following order: -

(1)  The trial shall commence on 27 May 2025 at 9:30 a.m. as scheduled and be conducted in Cantonese.  If a party wishes to play video clip during the trial that party shall liaise with the Court’s clerk before the start of the trial to ensure that this can be done efficiently.  All filed and served witness statements can be adopted as evidence-in-chief at the trial.

(2)  The Joint Assessment Report of Dr Hung Siu Lun Tony and Dr Fu Wai Kee shall be accepted as expert evidence without calling the makers thereof.

(3)  Chinese translation of English documents, except this PTR order, be dispensed with.

(4)  Trial Bundles be prepared by D based on the Draft Trial Bundle Index lodged by D on 3 September 2024, with the Chinese translation of this PTR order, to be done by D’s solicitors, inserted into the same.

(5)  To assist P in the preparation for trial, including seeking assistance on reading and digesting all documents, the original deadline for D to lodge and serve Trial Bundles be moved to 4:30 pm on 2 April 2025.

(6)  Any further request from P to insert documents into the Trial Bundle must be made by P to D in writing before 23 April 2025, failing which P be barred from inserting documents into the Trial Bundle.

(7)  D shall lodge and serve both hard and soft copies of D’s written opening list of authorities copies of authorities before 4:30 p.m. on 29 April 2025.  D’s written opening must be in Chinese.  Soft copies of D’s written opening shall be in both PDF and MS Word formats.  Insofar as MS Word copies of the existing pleadings and witness statements from D’s side are available, the same should be provided to the Trial Judge as well.  This is to ensure that if the Trial Judge wishes to quote the pleadings and witness statements in his/her reasoned judgment, it can be done easily and accurately, speeding up the delivery of the reasoned judgment to the parties.

(8)  D shall lodge and serve proper affirmation(s)  of service vis-à-vis its service of the documents mentioned above before 4:30 p.m. on 13 May 2025.

(9)  P shall lodge and serve P’s written opening before 4:30 p.m. on 13 May 2025.

(10)  Costs of this PTR be in the cause.

16.  I thank both parties, and Mr Alex Lam.