TSUI KOON WAH v. LAM KING YUEN AND OTHERS

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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D E C I S I O N

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Introduction

1.  This decision deals with two applications made by the plaintiff:-

(a)	a summons taken out on 23 October 2006 asking the court to delete one sentence from the judgments handed down earlier;
(b)	dates be fixed for the trial of this action.

2.  The background leading to these applications, and the nature of this action, has been set out in quite a few judgments or decisions handed down earlier and will not be repeated.

Summons Taken Out on 23 October 2006

3.  The plaintiff alleges that one sentence appearing in para. 5 of the judgments handed down respectively on 8 August and 10 August 2006 (“the August judgments”) is misleading and asks for it to be deleted.  The sentence reads:-

“An appeal to the court of appeal by the plaintiff also turned out to be unsuccessful”.

4.   The plaintiff contends that that sentence is misleading because, according to him:-

“Plaintiff was successful in obtaining an order to have overruled the order dated 29 January 2005 in part” (skeleton submission dated 10 November 2006).

5.  This application can be dismissed for various reasons, but the most important one is that the sentence is not misleading when it is read in the proper context.

6.  The plaintiff complained earlier that the trial of this action has been delayed.  There was a need in the August judgments to set out the matters which caused the delay.  The said appeal was one of those matters.

7.  The outcome of the plaintiff’s said appeal has been succinctly stated in para. 13 of the court of appeal’s judgment dated 18 July 2005:-

“…In view of the fact that the plaintiff has not been successful on this appeal on many of the amendments and those amendments that have been permitted were almost all different amendments from those sought below, I consider that the costs of this appeal should be the defendants’ costs in the action” (emphasis supplied) (per Rogers VP).

It is therefore quite correct to say that the plaintiff has been unsuccessful in that appeal when looked at in the round.

8.  Hence, I do not consider there is any merit in this application.

Fixing Trial Dates

9.  The recent progress of the pre-trial review herein has been set out in the reasons for decision handed down on 8 September 2006 as follows:-

“The first pre-trial hearing took place on 30 November 2004.  It has been adjourned and restored several times since then.  At the end of the pre-trial review hearing on 19 May 2006, several directions were given.  The one concerning trial bundles became the subject-matter of dispute at the hearing on 4 September 2006”.

10.  The plaintiff desires this action, being a claim in respect of libel, to be tried by a judge together with a jury: s. 33A(1), High Court Ordinance (Cap. 4).

11.  It is trite law that juries should decide the dispute before them based only on admissible evidence.  Inadmissible materials should therefore be excluded from their knowledge: Phipson on Evidence (2005) 16^th Ed., para. 11-68.  The court of final appeal has also made some observations about the supply of written directions to the jury: Albert Cheng and Another v. Tse Wai Chun Paul [2001] 1 HKLRD 191, para. 4 to 8.

12.  Such being the case, the proper preparation of trial bundles becomes even more important; inadmissible materials should not be included in trial bundles which are intended for use by the jury.

13.  This has been explained to the parties (in particular the plaintiff) during one of the court hearings.  In fact, in a letter dated 3 August 2006 from the defendants’ solicitors, the defendants indicated separate trial bundles would be compiled for the trial judge and the jury; respective indices for two trial bundles have been enclosed.

14.  But the plaintiff insisted on dates being fixed for trial before trial bundles are prepared.  At the end of the hearing on 4 September 2006, I directed inter alia that he was to lodge with court and serve an index (or indices) for the trial bundles for use by (a) the trial judge and jury, and (b) the trial judge only.  Reasons for the decision were handed down on 8 September 2006.

15.  Despite this, the plaintiff showed little sign of cooperation in regard to the preparation of trial bundles.

16.  Shortly before the hearing of this application, the plaintiff attached to the skeleton submission dated 10 November 2006 an index for one trial bundle, which consists of 3 items of pleadings and 11 items of witness statements.  Further, a trial bundle was lodged with court shortly before the hearing of this application.  It has about 300 to 400 pages and is not paginated.

17.  I pause to note that out of those witness statements, 3 came from the plaintiff himself (totalling about 100 pages).  There have been substantial amendments to the parties’ pleadings.  In view of this, earlier I indicated to the parties it would be more convenient for trial purposes for them to file and serve witness statements which in effect “consolidate” the contents of all witness statements previously filed and served.  The plaintiff obvious does not share that view.

18.  But apart from the items set out in para. 16 above, the trial bundle in fact also contains contemporaneous documents (presumably to be referred to by the witnesses at trial); these have been included as attachments to the witness statements concerned.  I estimate that they take up over 100 pages of the bundle.

19.  More importantly, there is no indication which part(s) of the bundle will be used by the jury, nor how the inadmissible part(s) of the bundle can be kept away from the jury’s attention.

20.  When some of these inadequacies were raised with the plaintiff at the hearing of this application, he responded negatively saying that he left it to the court to decide on the matter.

21.  Further, when being asked if the contemporaneous documents in his proposed trial bundle were the same as those set out in the defendants’ proposed indices, he confirmed they were (defence solicitor however disagreed with this).

22.  In these circumstances, I indicated to the parties at the hearing of this application my preference for the trial bundles proposed in the said letter of the defence.

23.  For reasons not apparent to me, the parties were reluctant to undertake the actual work of preparing the trial bundles after my said indication.  The deadlock partly disappeared when the plaintiff lodged with court (on 17 November 2006) a new bundle of documents (apparently prepared in accordance with the index to the defendants’ proposed bundle B).

24.  As regards trial bundles, therefore, only the defendants’ proposed bundle A is now outstanding.  The adjourned pre-trial review can be restored after the last-mentioned trial bundle has been lodged with court and served by the plaintiff.

25.  To assist the parties’ preparation for the adjourned pre-trial review hearing, I should indicate that two other matters may need to be considered at that hearing.

26.  First, the plaintiff has earlier issued and served over 20 subpoenas.  They have been set aside on 30 November 2004.  It is unknown if he still intends to issue these subpoenas, and if so, if it is appropriate to do so.

27.  Two, in view of the contents of the pleadings and the witness statements (in particular the plaintiff’s), it may be necessary to consider whether this action falls within one of the qualifications in s. 33A, Cap. 4 which (among other things) provides:-

“… the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents … which cannot conveniently be made with a jury”.

Conclusion

28.  The plaintiff’s said summons is dismissed.

29.   The pre-trial review hearing is yet again adjourned (see para. 24 above).

Costs Order Nisi

30.  The plaintiff has in effect been unsuccessful.

31.  There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the said summons and of the hearing on 14 November 2006 be paid by the plaintiff to the defendants.

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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BETWEEN

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HCA 890/2003

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

____________

____________

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

____________

____________

______________

D E C I S I O N

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Introduction

1.  This decision deals with the following summonses (in chronological order):

(a)     the plaintiff’s summons dated 5 September 2005;

(b)    the plaintiff’s summons dated 9 September 2005;

(c)     the plaintiff’s summons dated 13 September 2005;

(d)    the plaintiff’s summons dated 18 October 2005;

(e)     the defendants’ summons dated 18 October 2005.

These will be discussed further below but, before doing so, a brief account of the background leading to them will assist the comprehension of this decision.

Background

2.  Several written decisions have been handed down in relation to previous interlocutory applications in this action, the most recent of which was the one handed down on 5 September 2005.

3.  The decision dated 5 September 2005 said:

“To facilitate the understanding this judgment, the background leading to this application should be briefly mentioned.  For this purpose, I will gratefully quote from the judgment handed down on 20 October 2004 by Stone J:

‘4.  This is a defamation case, which has its origin in the employment, by the Government, of Mr Tsui, the plaintiff, as a Contract Social Security Assistant at the Mongkok Field Unit.

5.   Mr Tsui commenced work at this Unit on 21 May 2002, and his contract was to run until 31 March 2003.  However, he was dismissed from this employment on 3 January 2003 absent payment in lieu of notice or accumulated annual leave.

6.   To put the matter as neutrally as possible, it is fair to say that Mr Tsui did not enjoy a harmonious working relationship with employees of this Field Unit, and a number of ‘incidents’ arose, resulting in accusation and counter-accusation.

7.  In the event, Mr Tsui was summarily dismissed from his employment, and it is this dismissal which has led to his mounting two actions in the High Court : first, the existing action against four members of staff, wherein he seeks damages for defamatory statements he alleges were made against him, and second, a suit against the Government for wrongful dismissal, which I am told is HCA 2938 of 2003.  Mr Tsui has told the court that he recognizes the risk of adverse costs orders which may be made against him in such litigation, but that he anticipates possible bankruptcy as “a reality, not a strategy”.’

The defence to the claim is essentially (a) the defamatory meaning is denied, (b) justification and (c) publication on occasions of qualified privilege” (para. 2 and 3).

Relevant History of this Action

4.  The plaintiff commenced this action on 11 March 2003.  The first pre-trial review was conducted on 30 November 2004, such a review having been directed by the master when leave to set down this action for trial was given on 28 April 2004.  The plaintiff gave notice of setting down on 7 June 2004.

5.  Two summonses were before the court on 30 November 2004, both seeking leave to amend the plaintiff’s pleadings.  At the end of the hearing on that day, I ordered the pre-trial review to be adjourned sine die with liberty to restore and vacated the original trial dates, essentially because I considered the action was not yet ready for trial.

6.  In a decision handed down on 29 January 2005, leave was given in respect of parts of the proposed amendments sought in one summons whereas the other summons was dismissed.  The matter was subsequently taken on appeal by the plaintiff.  There were observations made by the court of appeal in a judgment handed down on 18 July 2005 regarding parts of the plaintiff’s pleadings.

7.  There was then a hearing on 31 January 2005 regarding the plaintiff’s application to vary a costs order made by Stone J, followed by two hearings in February and April 2005 respectively which were aborted because of the above appeal (which was pending at the time).  There was another hearing in May 2005 where the plaintiff applied to use 5 affirmations at the time of trial.

8.  Following another hearing on 5 August 2005, in a decision handed down on 30 August 2005, I refused the plaintiff’s application for me to recuse as the trial judge, and also the plaintiff’s application for leave to amend.

9.  The last hearing which is worth mentioning here was the one on 11 August 2005 where the defendants sought to strike out the statement of claim.  In a decision handed down on 5 September 2005, I acceded to that application in relation to parts of the pleadings.  This action was however not dismissed and leave was given to the plaintiff to amend his pleadings.  A costs order nisi was made that costs of the application be the defendants’ costs in the cause.

Plaintiff’s Summons dated 5 September 2005

10.  This is an application for:

“The costs order nisi dated 5 September 2005 [to] be varied”.

As stated above, that order was made at the end of a decision which struck out parts of the re-re-amended statement of claim and parts of the re-amended reply.

11.  The plaintiff has helpfully provided a written submission.  He submitted that the defendants ought to be deprived of the costs of their striking out application.  The basis of his submission is essentially this.  The defendants’ application was premised solely on RHC Ord. 18 r. 19(1)(a), namely, the claim discloses no reasonable cause of action. However, the court refused to strike out the claim on that ground.  Parts of the plaintiff’s pleadings were only struck out in exercise of the court’s inherent jurisdiction to prevent the likelihood of prejudicing, embarrassing or delaying fair trial.

12.  It must be borne in mind the costs order nisi does not adopt the usual rule that costs should follow the event: Ord. 62 r. 3(2).  It orders that the costs be the defendants’ costs in the cause, which means that:

“The [defendants] shall be entitled to [their] costs … if judgment is given in [their] favour in the cause or matter in which the proceedings arise, but [they] shall not be liable to pay the costs of [the plaintiff] in respect of those proceedings if judgment is given in favour of [the plaintiff] in the cause or matter in question”: Hong Kong Civil Procedure 2006, para. 62/3/6 (p. 927).

13.  Even though the basis of the decision was different from that advanced by the defendants, the fact remains the plaintiff resisted (unsuccessfully to a large extent) the application throughout.  Further, the defendants’ application has assisted the further conduct of this action; among other things, the attention of all concerned was drawn to the inadequacies in the plaintiff’s pleading.  As has been pointed out repeatedly, this is particularly important because of the plaintiff’s right to a trial by jury in this action: see para. 8 to 14 (especially para. 12 to 14), decision dated 30 August 2005 and 10 to 11, decision dated 5 September 2005.

14.  Having considered the whole circumstance, in particular those set out above, I find no valid reason to vary the costs order nisi.  This application is accordingly refused.

Defendants’ Summons dated 18 October 2005

15.  This application seeks to strike out the re-re-re-amended statement of claim and re-re-amended reply (both dated 30 September 2005) on the ground that they are an abuse of the process of the court.  In order to understand the basis of this application, reference must be made to the decision dated 5 September 2005.

16.  This application is discussed before the other 3 because of what transpired at the hearing on 24 October 2004 (explained in para. 17 to 21 below).

17.  As stated above, parts of the plaintiff’s pleadings have been struck out by the order dated 5 September 2005 with leave to the plaintiff to amend them.

18.  On 30 September 2005, the plaintiff filed a re-re-re-amended statement of claim (for convenience, “amended S/C”) and a re-re-amended reply (again for convenience, “amended reply”).  In fact, in relation to the amended reply, the plaintiff already indicated he would file it at the hearing on 11 August 2005 (see para. 42, decision dated 5 September 2005).  The amended S/C and amended reply will collectively be called “Amended Pleadings” below.

19.  This application is brought basically on the ground that their contents repeat (albeit using different ways of expression) those struck out by the order dated 5 September 2005.

20.  At the hearing on 24 October 2005, the plaintiff indicated that, save for some minor amendments, all the required amendments have been made in the Amended Pleadings.  Accordingly, he no longer pursued the summons dated 13 September 2005 (see the heading below).  In fact, in view of the plaintiff’s indication, save regards the “minor” amendments (which were not specified during the hearing), there should be no need for him to pursue his summonses respectively dated 13 September 2005 and 18 October 2005.

21.  On the other hand, the defendants’ stance is that neither the Amended Pleadings nor any of the proposed amendments set forth in the summonses is consistent with the order dated 5 September 2005.

22.  In relation to his summons dated 9 September 2005, the plaintiff seeks leave to amend based on the draft handed up at the hearing on 24 October 2005 (and not the one attached to that summons) (“the new draft reply”).  The defendants maintain their view regarding the new draft reply.  This will be dealt with in para. 30 to 32 below.

23.  A comparison of the parts of the plaintiff’s pleadings struck out by the order dated 5 September 2005 (collectively “the struck out pleadings” and respectively “the struck out S/C” and “the struck out reply”) and the various drafts will therefore facilitate the determination of the above dispute.  Comparison will firstly be made between the struck out pleadings and the Amended Pleadings.

Paragraph No. of Struck Out Pleadings	Summary of Contents	Paragraph No. of Amended Pleadings
Struck Out S/C		Amended S/C
4	plaintiff's dismissal took place on 25 October 2002 was supported by 4 incidents; 4 defamatory documents were published	parts of para. 4 are deleted.  The defamatory documents are limited to 3
5	defamation by D4 already pleaded in para. 3	deleted
6	plaintiff’s dismissal was the Director’s disciplinary action after the issuance of a warning letter supported by a defamatory letter written by D4 para. 6(a) to 6(g) are not contended to be defamatory and are irrelevant	the cause of the dismissal is deleted.  The defamatory meanings have been expressly pleaded.  Para. 6(c) to (e) are deleted
8	loss of opportunity to contest unreasonable comments in D2’s appraisal report	deleted
9	claim for damages is confusing and/or inconsistent with previous pleadings
10	para. 10 is replaced
Struck Out Reply		Amended Reply
2(e)	alteration of time of arrival at the office by other officers	same plea
2(g)	request by a Ms. Lo for non-disclosure of her identity	same plea
2(h)	Ms. Lo refused to sign her witness statement and District Officer sent plaintiff a warning letter	same plea
2(i)	plaintiff refused to acknowledge receipt of the warning letter	same plea
2(k)	Ms. Lo refused to sign her witness statement and D2 informed her D2 knew the witness was Ms. Lo	same plea
2(l)	plaintiff wanted to speak to Ms. Lo out of office but saw her walking with D2	same plea
2(m)	Ms. Lo informed plaintiff she was afraid of retaliation actions by D2 and D4	same plea
2(p)	Ms. Lo informed the plaintiff she signed a witness statement with a different account and refused to give plaintiff a copy	same plea
2(r) [erroneously identified as 2(n)]	various matters which should not properly be included as particulars of history of antagonism between the plaintiff and the defendants	same plea
2(s)	same plea
2(ee)	plaintiff's dismissal shows D2 and D4 have abused their power	same plea
7(h) 7(i)	plaintiff's dismissal was a heinous scheme with consent of District Office	same plea (now para. 7A(e)) same plea (now para. 7A(f))
7(k)	senior management has conspired with the defendants	same plea (now para. 7A(h))
12	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now para. 10A(c) but amended to plead knowledge of falsity is evidence of malice
13	plea of malicious falsehood not in Amended S/C and not relied upon at trial D4 conspired with District Officer	now para. 10A(d). Plea of malicious falsehood is deleted but conspiracy plea remains
14	District Officer allowed D4 to ventilate her personal spite despite plaintiff’s earlier complaint	now para. 10A(e)
15(t)	District Officer’s inability to explain	now para. 15A(f)
16	D4 behaved arbitrarily and dictatorially and was incompetent in management ability	now para. 15A(h)
17	now para. 15A(h)
20	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now para. 15A(m) but amended to plead knowledge of falsity is evidence of malice
21	plea of malicious falsehood not in Amended S/C and not relied upon at trial D4 conspired with District Officer	now para. 15A(n) but plea of malicious falsehood is deleted. Plea of conspiracy remains
22	plaintiff complained to District Officer in writing	now para. 15A(o)
26	plea of malicious falsehood not in Amended S/C and not relied upon at trial	deleted
29	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	deleted
30(b)	plea of malice in reply to defence of justification	deleted
35	this is related to para. 4(d), Amended S/C	deleted
36	unspecified conspiracy	deleted
56(a) to 56(w)	plaintiff has not been informed of appraisal report plaintiff lost opportunities to contest other “unreasonable” comments	para. 56(b) is now para. 56(c); para. 56(c) to (w) are deleted
58	plea of justification shows D4 knew of falsity of statement and is conclusive evidence of malice	now second para. 56(d) but amended to plead knowledge of falsity is evidence of malice
60	defendants conspired to obtain consent from senior management to dismiss plaintiff	now para. 60(a)

24.  In brief, all the offending paragraphs in the struck out S/C no longer appear in the amended S/C.

25.  In relation to the amended reply:

(1)     para. 2(e), (g) to (i), (k) to (m), (p) to (s) and (ee);

(2)     the new para. 7A(e) to (f) and (h);

(3)     the new para. 10A(d) and (e);

(4)     the new para. 15A(f), (h), (j), (n) and (o);

(5)     para. 36;

(6)     the new para. 56(c);

(7)     the new para. 60(a),

have previously been struck out by the order dated 5 September 2005.

26.  The above averments in the amended reply should therefore be struck out as amounting to an abuse of the court process.  An order to this effect should be made in relation to this application.

Plaintiff’s Summons dated 9 September 2005

27.  This application states in the space provided in the summons for setting out the order sought:

“Please see the attached”.

This statement refers to a 2-page hand-written document attached to the summons.  It starts with:

“1. Plaintiff be at liberty to re-re-amend the Statement of Claim in  green within 14 days … ”

The rest of that document sets out in 12 sub-paragraphs (one of which has quite a few sub-sub-paragraphs) the proposed amendments (to the statement of claim) sought by the plaintiff.  The document continues:

“2. Plaintiff be at liberty to re-re-amend the Reply in purple … in the manner as per the copy annexed herewith … ”

with costs of the application payable to the defendants in any event.  The draft amended reply (some 43 pages long) is also attached.  The plaintiff also seeks an expedited trial date.

28.  The application for leave is opposed by the defendants on the same grounds summarised under the previous heading.

29.  The proposed amendments in this application relating to the statement of claim have in fact been incorporated into the amended S/C.  In para. 24 above, I have in effect concluded in the plaintiff’s favour in this regard.  There is accordingly no need to deal with this part of this application.

30.  As regards the proposed amendments relating to the reply, as stated in para. 22 above, the plaintiff now relies on the new draft reply (which he provided at the hearing on 24 October 2005).  The new draft reply contains proposed amendments to what appear to be para. 2(f) to (h), (j) to (k) and (o) of the amended reply.

31.  Despite the new draft reply, the proposed amendments still suffer from the same defects as those set out in para. 25 above.  Further to that, para. 2(k) of the new draft reply avers that Ms. Lo was deterred by D2 from acting as the plaintiff’s witness and D4 made her to attend to the service counter by herself during the weekends.  These averments are irrelevant to the cause of action and are at most evidence.  They are impermissible under RHC Ord. 18 r. 7(1) (facts, not evidence, to be pleaded).

32.  By reason of the above matters, no order will be made in relation to the proposed amendments to the statement of claim.  The part of this application relating to the proposed amendments to the reply is dismissed.

Plaintiff’s Summons dated 13 September 2005

33.  This application in effect seeks leave to amend the summons dated 9 September 2005 by adding a new sub-paragraph to draft amendments attached to that summons.

34.  As stated in para. 20 above, the plaintiff indicated on 24 October 2005 he no longer pursued this application.  This application is therefore dismissed.

Plaintiff’s Summons dated 18 October 2005

35.  This application seeks an extension of the time stipulated in para. 3 of the order dated 5 September 2005 for amending the reply.

36.   Proposed amendments are made to para. 2(e), (g) to (h), (i), (k) to (n) and (p) of the reply.  Except para. 2(l) and (p) of the draft which consists of the deletion of those sub-paragraphs, the proposed amendments suffer from the same defects as those set out in para. 25 above.

37.  For this reason, except in relation to the proposed deletions (to which leave is given) this application is dismissed.

Conclusion

38.  Save to the extent indicated above, the following summonses are dismissed:

(a)     the plaintiff’s summons dated 5 September 2005;

(b)    the plaintiff’s summons dated 13 September 2005;

(c)     the plaintiff’s summons dated 18 October 2005.

39.  The plaintiff is successful as regards his summons dated 9 September 2005 to the extent indicated above.

40.  The defendants are successful as regards their summons dated 18 October 2005 to the extent indicated above.

Pre-Trial Review

41.  The plaintiff restored the pre-trial review for it to be heard at the hearing on 24 October 2005.

42.  By virtue of the above, the plaintiff’s reply is still in a dissatisfactory state because parts of it have been struck out.  It is unclear if the plaintiff wishes to further amend it and if so what are the proposed amendments.

43.  In view of the contents of the Amended Pleadings, which resulted (among other things) in the defendants’ summons dated 18 October 2005, it is better not to indicate whether leave to amend will again be given to the plaintiff.  If the plaintiff in fact wishes to do so, he is reminded that the usual procedure should be followed, including setting out the precisely worded proposed amendment(s).  For the benefit of all concerned, the commentaries on the practice in Hong Kong Civil Procedure 2006 are quoted below:

“It is desirable to specify the intended amendments … either by stating them (if short) in the body of the summons … or by referring to them, e.g. ‘as set forth in red ink in the pleading annexed’ …

In practice, leave to amend is given only when and to the extent that the proposed amendments have been properly and exactly formulated …  In such case the order giving leave to amend binds the party making the application and he cannot amend generally … ” (para. 20/8/4, p. 357).

Besides this, other interlocutory matters, including those set out below, may still be outstanding.

44.  It is unknown if there is a need for further discovery to be made and/or other interlocutory steps to be taken as a result of the recent amendments to the pleadings.

45.  The trial bundles will need to be discussed and agreed and, in any event, require the court’s examination because of the plaintiff’s indication that this action be tried by a judge together with a jury.  It is necessary to ensure that only admissible materials are included in the bundles to be placed before the jury.

46.  In these circumstances, this action is not yet ready for trial.  I leave it to the parties to decide if any outstanding interlocutory matters ought to be dealt with at the restored pre-trial review or on other occasions.  The pre-trial review itself is against adjourned sine die with liberty to restore.

Costs Order Nisi

47.  In view of the above outcome, there will be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the summonses referred to in para. 38 above be paid by the plaintiff to the defendants in any event.

48.  There will also be a costs order nisi that three-fifths of the costs of the plaintiff’s summons dated 9 September 2005 and the defendants’ summons be paid by the plaintiff to the defendants in any event.

49.  To assist all concerned with the taxation of costs, I assess the hearing on 24 October 2005 should be apportioned as follows:

(1)     four-fifths thereof be apportioned to the defendants’ summons dated 18 October 2005;

(2)     one-fifth thereof be apportioned to the plaintiff’s summons dated 9 September 2005;

(3)     the remainder thereof be apportioned to the other summonses and the pre-trial review hearing.

The hearing on 14 September 2005 was in the nature of a call-over hearing.

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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REASONS  FOR  DECISION

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Introduction

1.  The summons taken out by the plaintiff on 29 July 2005 sought the following relief:-

(a)	the defendants’ summons taken out on 18 July 2005 be heard by other bilingual judges of the court of first instance;
(b)	leave to the plaintiff to re-re-amend his Reply within 14 days by adding para. 61E to 61H (the draft of which was annexed to the summons).

At the end of the hearing of the application, I dismissed it indicating reasons for doing so would be handed down later.  They are as follows.

The Application To Recuse

2.  This refers to the application set out in para. 1(a) above.  According to the plaintiff, it was brought on the basis of two matters:-

(a)	the remark I made in para. 48 of the judgment handed down herein on 29 January 2005 (“the said judgment”);
(b)	the remarks I made during the pre-trial review on 21 February 2005 which were related to para. 48 of the said judgment and to the state of the plaintiff’s pleadings.

Before turning to the merits of this application, the nature of, and the relevant parts of the history of proceedings in, this action need to be briefly mentioned.

3.  This action was commenced in March 2003.  The plaintiff alleges in the statement of claim (by now in its re-re-amended version) that the defendants defamed him.  The defendants deny the claim.  The lines of defence raised are (a) a denial of any defamatory meaning, (b) justification and (c) publication on occasions of qualified privilege.  The Reply (now in its re-amended version) pleads (among other things) malice and misuse of the privilege.

4.  The said judgment concerned the plaintiff’s earlier applications (one taken out on 25 October 2004 and the other on 29 December 2004) to amend his pleadings.  They were first adjourned to the pre-trial review heard on 30 November 2004, and later further adjourned to a full hearing on 3 January 2005.  The plaintiff was partly successive as regards the October 2004 summons in obtaining leave to amend some parts of his pleadings.  The December 2004 summons was dismissed.

5.  The remark appearing in para. 48 of the said judgment reads:-

“Another matter which may warrant further examination is the state of the plaintiff’s pleadings.  This, however, is more properly a matter for the parties to consider.  I will therefore not elaborate on this subject”.

6.  I pause to note that these remarks were made in relation to pleadings which, on the plaintiff’s appeal against the said judgment, the court of appeal said were “long” and “prolix”.

7.  Before turning to the merits of this application, several general legal propositions have to be stated.

8.  First, in most cases, pleadings are important to civil litigation because, at the end, they define the extent of dispute and the ambit of the investigation needed to resolve the dispute: see Hong Kong Civil Procedure 2004, para. 18/0/2 and 18/12/1.

9.  Rules of the High Court prescribe how litigants should plead their respective case: see, for example, Ord. 18 r. 6 (formal requirements), r. 7 (only materials facts and not evidence should be pleaded), r. 8 (matters which must be specifically pleaded), r. 10 (consistent pleas) and r. 12 (necessary particulars).

10.  Apart from the rules, the court has an inherent jurisdiction to prevent all proceedings which are obviously frivolous or vexatious.  Here I need do no more than quote from the decision of A Cheung J in Ng Yat Chi and Another v. China Resources (Holdings) Co. Ltd. and Others HCA 424/2005 (12 August 2005) where the learned judge reviewed comprehensively the relevant authorities and principles:-

“Order 18 rule 19(1),the Rules of the High Court (Cap. 4), providing for the court’s power under the statutory rules to strike out pleadings and indorsements, does not specifically require the application of a party as a pre-condition to the court’s exercise of its power.  Rather it provides that the court “may at any stage of the proceedings order to be struck out” any pleadings based on the usual grounds … and order the stay or dismissal of the action.

Moreover, apart from the statutory power to strike out, there is also the parallel power under the inherent jurisdiction of the court to strike out or stay proceedings before it, which are obviously frivolous or vexatious, or are otherwise an abuse of process of the court.  In fact, the power to make a restricted application order or a restricted proceedings order stems from the same inherent jurisdiction of the court to protect its own process from abuses.

Further, whether under the statutory power or the inherent jurisdiction to strike out, the court may consider exercising its power on its own motion, even in the absence of any application.

The position has also been explained by Hong Kong Civil Procedure 2004, vol. 1, para. 18/19/12, which points out that from time to time such power to strike out has been exercised by the court in personal injuries cases of its own motion:

“The current personal injuries Judge, Seagroatt J considers that this is a much misunderstood provision and is often overlooked in practice. In personal injury actions, particularly running down and employer’s liability actions, many accidents are so self-evidently the consequence of negligence on the part of the defendant that no sensible defence can be maintained. Where there is no plea of contributory negligence, or no evidence of it, or where such a contention is manifestly contrary to common sense and known principles of law, the court has power to strike out the defence and enter judgment accordingly, even in the absence of a specific application by the plaintiff. Further the inherent jurisdiction of the court enables it to make decisions for the economic, expeditious and just disposal of actions. Spurious defences such as tactical or holding defences, are regarded as wasting costs, causing the parties to prepare cases on liability where there can be no such issue. This involves use of court time and resources as well as the use of public funds and resources in cases where the Legal Aid Department, Department of Justice, Labour Department and Police Force are concerned.”

See also Lam Kai v. Official Receiver, HCMP 3905/1999, Rogers JA (26 July 1999), para. 11.

“Nor are these instances limited to personal injuries cases.  My own limited research reveals that in CS Low Investment Ltd. v. Freshfields [1991] 1 HKLR 12, a professional negligence case, the Court of Appeal of its own motion struck out the entire statement of claim as being “incurably bad”, even though the application to strike out taken out by the defendant, which led to the appeal, was restricted to certain parts of the pleading only.  The court, citing Huntly v. Gaskell [1905] 2 Ch. 656, emphasised that it had inherent jurisdiction to strike out the pleading of its own motion (at pp. 26H/I and 27B).  Fuad VP said that the court “cannot allow the machinery of the court to be used as a means of vexatious oppression” (at p. 26H/I).  He went on to say that the proceedings in that case “should never have been launched and … [they had] been allowed to remain alive for too long as it [was]” (p. 26H/I).

In Dragages et Travaux Publics v. Hong Kong Housing Authority, Civ. App. No. 87 of 1984 (7 June 1984), the Court of Appeal heard an appeal from the refusal of a judge to discharge an ex parte injunction.  Sir Alan Huggins, Ag. CJ with whom Yang and Baker JJA agreed, found that the action could not possibly succeed in face of the evidence filed by the plaintiff and of the court’s own motion struck out the writ.

The court’s power to strike out has been touched on by Ribeiro PJ in paragraphs 55 to 57 of his judgment in Ng Yat Chi (at page 494B to I).  It is true that in paragraph 57 (at page 494H), his Lordship referred to the need for the party being vexed by the abusive proceedings to make an application to strike out and for the court to entertain an inter partes hearing before the abuse can be brought to an end by a strike-out order.  There, I believe his Lordship was focusing on the normal type of situations where the court deals with an application to strike out.  As I have sought to demonstrate above, the power to strike out has been exercised on the court’s own motion, even in the absence of a specific application, provided that a fair opportunity to be heard has been afforded to the party affected.  As has been pointed out by Earl of Selborne LC in Metropolitan Bank v. Pooley (1885) 10 App. Cas.  210, the power to strike out or stay a manifestly vexatious suit which is plainly an abuse of the authority of the court is “inherent in the jurisdiction of every Court of Justice to protect itself from the abuse of its own procedure” (at page 214).  As the protection of the court’s own procedure and interest is at stake, it seems to me that the exercise of the power to strike out or to stay the abusive proceedings so as to protect the court’s own procedure and interest cannot be dependent upon the making of an application by the opposite party.  The court must have, as part of its inherent jurisdiction to protect itself from the abuse of its own procedure, the power to act on its own motion.  Of course, the power must be exercised carefully and resorted to only in exceptional circumstances where it is a plain and obvious case of abuse.  But that is quite another matter distinct from the one under discussion.

In the court’s combat against abusive proceedings brought by vexatious litigants, not only should the court be flexible in developing remedies which are proportionate to the abuse that has to be dealt with in exercising its statutory and inherent jurisdiction (paragraph 6 of Li CJ’s judgment in Ng Yat Chi at page 482A-C), afortiori, it should also have no hesitation in putting to best and most efficient use of existing weapons already in its possession to prevent or curb abuses of process.  Amongst others, the statutory and inherent jurisdiction to strike out on the court’s own motion, even in the absence of a specific application, should be resorted to unhesitantly, where appropriate.

Of course, before the court should decide to exercise its power to strike out, a fair opportunity must be given to the potentially affected litigant to be heard.  But subject to that procedural safeguard, I am of the view that the court clearly has the power to strike out a frivolous or vexatious claim or proceedings that are an abuse of the process of the court, on its own motion, and in the absence of a specific application.

That being the case, I fail to see why a designated judge must give leave or permission for an abusive claim to be commenced or proceed, which is caught by the wide formulation in a restricted proceedings order that has its genesis in an attempt to re-litigate an old matter, if the new claim does not involve an attempt to re-litigate but is otherwise abusive.  As a matter of substance, not giving leave/permission is the same as striking out the claim of the court’s own motion” (emphasis supplied) (para. 26 to 35).

11.  I do not necessarily suggest that the plaintiff herein is a vexatious litigant, or that his claim is necessarily frivolous or vexatious.  The purpose of quoting the above passages is to demonstrate that the court has the power to regulate its own procedure (on its own motion) so as to ensure that litigations are disposed of justly but at the same time economically and expeditiously.

12.  This is particularly needed in defamation actions where there is a right to trial by juries: s. 33A, High Court Ordinance (Cap. 4).  The plaintiff has indicated he wishes to have this action tried by jury.  When ordinary citizens perform their civic duties to sit as jurors, they sacrifice their own time to do so.  This necessarily results in disruptions to their daily lives.  Consequently, while recognising the litigants’ statutory right to trials by jury, the court and litigants must ensure trial time is not unnecessarily lengthened.

13.  Further, only admissible evidence can be adduced before a jury.  The ambit of the dispute must therefore be precisely defined to avoid inadmissible evidence being inadvertently shown to jurors.

14.  Moreover, the functions of the judge at trial are different from those of the jury: Gatley on Libel and Slander (2004) 10^th Ed., Ch. 34.  The judge must be able to know what directions (whether regarding points of law or matters of evidence) he needs to give to the jury.  This again requires the pleadings to be clear so that the issues can be easily ascertained.  An example of difficulties arising from a lack of clear pleading in a defamation action can be found in the decision in 匠心髮型 v. The Sun News Ltd. and Another HCA 3236/2002 (29 July 2005), para. 4, 7, 11 to 13, 14 to 17, 19 and 20 to 24.

15.  It is in the light of the above that the remark in para. 48 of the said judgment was made.  This can also serve to put the parties on notice that the court is concerned with the state of the plaintiff’s pleadings.  Procedural fairness is ensured by such prior notice.

16.  The same applies to the remarks made during the pre-trial review on 21 February 2005.  The parties indicated to the listing master as early as in April 2004 this action was ready for trial.  The first pre-trial review was held in November 2004.  There was at one stage a date scheduled for trial of this action (which was vacated).  But, as has been observed at para. 45 to 48 of the said judgment, this action is in fact not ready for trial yet.  The state of the plaintiff’s pleadings is one reason for such conclusion.

17.  In addition, the 21 February 2005 hearing was part of the pre-trial review.  It was an occasion where the court was also exercising its case-management powers.

18.  I do not hold any bias against the plaintiff’s pleadings and the above remarks were not made for that reason.  Insofar as the plaintiff relies on apparent bias arising out of the above remarks, I also find that to have no substance.

19.  The test for determining an application to recuse for apparent bias is succinctly set out in the Court of Final Appeal’s decision in Deacons v. White & Case Limited Liability Partnership and Others [2004] 1 HKLRD 291 at para. 20 and 21.  In short, the test is:-

“The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased”.

20.  Merely because the court puts the litigants on notice it may exercise its inherent jurisdiction and/or case-management powers cannot be considered to be evidence (or even an indication) of bias.

The Application for Leave

21.  This refers to the application set out in para. 1(b) above.

22.  The defendants object the application on the ground that the proposed amendment is the same as the amendment disallowed by the court of appeal (save some cosmetic difference).  In this connection, the defendant rely on the following passage in the court of appeal judgment dated 18 July 2005:-

“The plaintiff wishes to put in these paragraphs which are expressed to be summaries.  In my view such amendments should not be allowed.  On the face of them they are expressed to be summaries of what has already been pleaded, they simply add to the length of the pleading.  …  In a situation as at present, where the pleadings are prolix, I consider that it would be a wrong to exercise the discretion to permit an amendment which makes the pleadings even longer simply on the basis that it summarises the case which, on the face of it, is already been pleaded” (emphasis supplied) (para. 12).

The above passage was concerned with para. 61E to 61H of the previous draft proposed amendment.

23.  The difference between that draft amendment and the present draft is:-

(a)	the previous draft contains the opening phrase “To summarise”.  This is replaced by “In the course of action of defamation” in the present draft;
(b)	the present draft adds the words “with express malice” at the end of the sentence.

Apart from the above, both drafts are substantially the same and plead that the defendants published the defamation with express malice (various matters are then set out to show malice).

24.  The vice observed by the court of appeal still exists.  Malice has already been pleaded in the re-amended Reply: see, for example, para. 2 (with particulars (a) to (ff) which span over some 10 pages), 3, 4, 5, 12, 19, 20, 26, 29, 31, 36, 46, 47, 48, 56 and 58.  During the hearing, the plaintiff said that some of these averments are not entirely correct.

25.  It should be noted I do not necessarily say that the above quoted averments are properly pleaded.  Moreover, the correct way for a litigant to deal with improper pleadings is to amend them, but not by putting in new paragraphs to the already improper pleadings.

26.  The plaintiff argues that this application was taken out as “instructed” by the court of appeal: para. 6 and 11 of the court of appeal’s judgment dated 18 July 2005 and para. 2 of the judgment dated 29 July 2005.  In essence, the court of appeal only remarked in those paragraphs that, if the plaintiff wishes to put up a proper plea of express malice, this is not affected by the court’s earlier decisions per se.

27.  By reason of the above matters, this application should be refused.

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.890 OF 2003

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Before : Hon Stone J in Chambers

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J U D G M E N T

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The application

1. This is an application by the defendants herein, by summons dated 14 September 2004, issued pursuant to Order 26 rule 3, to withdraw the interrogatories filed by the plaintiff on 1 September 2004.

2. I understand that this application was not fixed before a Master, as would have been the case in normal course, because this action already has been set down for trial, with a trial date of 3 January 2005, with five days reserved.

The background

3. On any basis this would be an unusual application in terms of its timing, given the imminence of the trial itself.  Accordingly, it may assist to sketch in a little of the background.

4. This is a defamation case, which has its origin in the employment, by the Government, of Mr Tsui, the plaintiff, as a Contract Social Security Assistant at the Mongkok Field Unit.

5. Mr Tsui commenced work at this Unit on 21 May 2002, and his contract was to run until 31 March 2003.  However, he was dismissed from this employment on 3 January 2003 absent payment in lieu of notice or accumulated annual leave.

6. To put the matter as neutrally as possible, it is fair to say that Mr Tsui did not enjoy a harmonious working relationship with employees of this Field Unit, and a number of ‘incidents’ arose, resulting in accusation and counter-accusation.

7. In the event, Mr Tsui was summarily dismissed from his employment, and it is this dismissal which has led to his mounting two actions in the High Court : first, the existing action against four members of staff, wherein he seeks damages for defamatory statements he alleges were made against him, and second, a suit against the Government for wrongful dismissal, which I am told is HCA 2938 of 2003.  Mr Tsui has told the court that he recognizes the risk of adverse costs orders which may be made against him in such litigation, but that he anticipates possible bankruptcy as “a reality, not a strategy”.

8. As earlier noted, the present action, the ‘defamation action’, is due to come to trial at the beginning of January 2005, and a PTR is scheduled for 30 November 2004.  I am told that the reason that these two actions have not been the subject of an order that they be consolidated or otherwise heard together is that Mr Tsui wishes the defamation proceedings to be heard before a jury, and that a Master has made an order to this effect.

9. Within the present action this in fact is the second application by Mr Tsui for interrogatories.  Mr Cheung, who appears today for the defendants, told the court that the first application for such relief was made on 4 December 2003, wherein the defendants were confronted with a request consisting of approximately 100 questions.  A genuine attempt then was made to respond to these questions, but the plaintiff was unsatisfied, and took out an application that further answers be provided.  The hearing of this application took place on 7 May 2004, before Master Hui, who dismissed 52 out of the 54 questions remaining extant.

10. The current application poses another 35 interrogatories, although as Mr Cheung has noted, the subdivisions involved result in this being, in substance, a request in terms of significant more than that, give that many of the questions are to be answered by more than one party.

The argument

11. Each side has put in a lengthy skeleton argument, the existence of which has assisted the court, and has served the purpose of minimizing the time required for oral argument.  Neither Mr Cheung, nor Mr Tsui, wished to elaborate upon that which had been presented in written form, although Mr Tsui did wish to stress that he currently was in receipt of social security assistance, and that he hoped that the defendants would answer these further interrogatories, since this would minimize the number of witness subpoenas that he might need to issue for trial; each such summons required a deposit of $500.00, and given that he was contemplating issuing subpoenas for some 30 witnesses he felt that this was an expense that he could ill afford.

12. For his part, Mr Cheung for the defendants took firm issue with this latest request, which was characterized as oppressive, irrelevant and unnecessary to the disposition of the issues in the case.  He also asserted that the detailed information requested could as easily be obtained from the defendants in cross-examination, and that no proper basis had been made out for the grant of this request.

13. Mr Tsui, in his skeleton submission, stated that he withdrew 6 of the interrogatories initially so requested, namely numbers 15, 19, 20, 25, 33 and 42, and asserted that the majority of the remaining 29 are susceptible to ‘Yes/No’ responses.  His is a long skeleton argument, redolent with detail, which I have read and reflected upon within the context of the pleaded issues in this case, and in light of Mr Tsui’s assertion that the interrogatories, or most of them, were contemplated in order to strike at the weakness of the defence or to avoid unnecessary court attendance of various witnesses, which would increase the cost and length of the trial.

14. Mr Tsui also has characterized the defendants’ present summons to withdraw the interrogatories as frivolous and vexatious, not made in good faith, and “merely an act of procrastination” which wastes the time and energy of the plaintiff and of the court, and he asks that the defendants answer on affidavit the interrogatories, as drawn, within seven days.

Decision

15. I have reminded myself of the developed jurisprudence applicable to interrogatories, and in particular the overriding principle that the interrogatories in question must be necessary either for disposing fairly of the cause or matter or for saving costs, that they should not be oppressive, irrelevant, prolix or imprecise, nor that they should “fish” for evidence.

16. Ultimately the matter is one for the discretion of the court, which is able to take into account all the circumstances of the case.

17. I have considered the respective positions of the parties to this application, as adumbrated in their detailed written presentations.  I have also taken into account the lateness of the request: it must be rare indeed to countenance the issuance of interrogatories no more than ten weeks before trial, and subsequent to an order for setting down, when one of the considerations of the court prior to permitting such setting down will have been whether there were significant outstanding procedural matters to be ‘cleared’ before the case is fixed for trial.

18. In all the circumstances I have decided to accede to the defendants’ request, in terms of the summons before me, that this second tranche of interrogatories should be withdrawn.

19. I have not found it easy to relate the requests to the essential matters in issue, as pleaded, and I note that all the questions as now raised can be posed directly to the defendants, who will in any case be called as witnesses at trial.  I see no reason why the defendants should now be required, at this late stage, further to consider and respond to these detailed questions (certain of the answers to which are said to be already canvassed in the documents), and which in any event are questions which I do not regard as being ‘necessary’ for the fair disposal of this action.

20. Nor on the basis of the information before me am I in a position to determine with any certainty whether, as the plaintiff suggests, the response to these various detailed matters would serve to lessen the number of witnesses that he may, or may not, ultimately decide to subpoena to give evidence at trial.  In this connection I would observe that I should be surprised indeed if mere ‘yes/no’ responses to some of these interrogatories was to be conclusive of the important issue of whom the plaintiff is to call in the conduct of his case.  I am of course sympathetic to Mr Tsui’s plea of impecuniosity, but looking at the matter in the round I do not consider that the justice of this case requires that these defendants now should be required to answer these interrogatories.  To the contrary.  It strikes me with some force that this late request should be dismissed as oppressive and unnecessary for the fair disposition of this case.

21. Accordingly, I order that the interrogatories filed by the plaintiff on 1 September 2004 be withdrawn.  I further order that the costs of this application are to be to the defendants, to be taxed if not agreed.  I make an order nisi to this effect.

Mr Tsui Koon Wah, the plaintiff herein, in person

Mr Michael Cheung of Messrs Liu, Chan & Lam, for the defendants

HCA890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.890 OF 2003

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J U D G M E N T

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1. The plaintiff was dismissed from the post of Contract Social Security Assistant ("CSSA") in January 2003. The defendants were colleagues of the plaintiff at the Social Welfare Department at the material time.

2. The plaintiff claims against the defendants for alleged defamatory remarks which led to his dismissal.

3. On 16 January 2004, the 1st, 2nd and 4th defendants were ordered to answer interrogatories "in writing by affidavit".

4. The affirmations filed on behalf of the 1st, 2nd and 4th defendants on 5 February 2004 did not give the address of the deponents, contrary to Order 41, rule 1(4) and section 7(4) of the Oaths and Declarations Ordinance, Cap.11 ("the Ordinance").

5. The 1st, 2nd and 4th defendants were ordered by Master C. Chan to amend those affirmations, and to pay $200 costs to the plaintiff.

6. On 25 February 2004, supplemental affirmations were filed by these defendants stating that they were made "pursuant to the Order made by Registrar C. Chan on 17th February 2004 to amend my affirmation filed on 5th February ("the Affirmation") by way of providing my address as hereinbefore stated".

7. The addresses given in the supplemental affirmations were the addresses of the Social Welfare Department at which presumably the deponents were working at the time of the supplemental affirmation.

8. By a summons dated 28 February 2004, the plaintiff applied to have the affirmations filed on 5 February 2004 and the supplemental affirmations filed on 25 February 2004 struck out for non-compliance with the Ordinance and Order 41 of the Rules of the High Court. The plaintiff also applied to have the re-amended Defence filed for the 1st, 2nd and 4th defendants struck out and judgment entered against them, and lastly, the plaintiff applied for costs.

9. This application was heard by Master Levy on 28 April 2004 and dismissed. The plaintiff was ordered to pay costs in the sum of $3,800 forthwith.

10. On 3 May 2004, the plaintiff appealed against the order of Master Levy. The plaintiff, who appeared before me in person, argued that the supplemental affirmations did not comply with section 7(4) of the Ordinance in that, having regard to the "general possessive sense attached to 'OF' the Plaintiff submits that the Defendants cannot be 'of' an address of a place when they are neither owner nor lease holder of the place".

11. I do not agree. I do not believe, for example, that if a person lives at home and gives the address of his father's house which is owned by his father he could be said to have failed to comply with the Ordinance.

12. The plaintiff also relies on Order 41, rule 1(4) of the Rules of the High Court. This reads :

"(4) Every affidavit must be expressed in the first person and, unless the Court otherwise directs, must state the place of residence of the deponent and his occupation or, if he has none, his description, and if he is, or is employed by, a party to the cause or matter in which the affidavit is sworn, the affidavit must state that fact. In the case of a deponent who is giving evidence in a professional, business or other occupational capacity the affidavit may, instead of stating, the deponent's place of residence, state the address at which he works, the position he holds and the name of his firm or employer, if any."

13. The plaintiff argues that the residential address of the deponents should have been given rather than the address of his work place since the court had not otherwise directed.

14. Miss Selina Hui who appeared on behalf of the defendants argued that insofar as the claim arose out of the defendants' employment at the Social Welfare Department, they were entitled to use the address at which they work because the defendants were deponents who were giving evidence "in a professional, business or other occupational capacity".

15. But the claim against the defendants is for defamation. Even though the cause of action complained of might have allegedly arisen in the course of or during the defendants' employment with the Social Welfare Department I do not think it is correct to say that in answering the interrogatories on oath they were "giving evidence in a professional, business or other occupational capacity". I do not believe in the circumstances of the present case, it can fairly be said that the defendants were giving evidence in any occupational capacity.

16. That does not mean that an affirmation which fails to comply with Order 41, rule (1)(4) should be struck out. Miss Hui, at my invitation, was willing to rely on Order 41, rule 4 under which an affidavit may, with the leave of the court, be filed or used in evidence notwithstanding any irregularity in the form thereof.

17. The plaintiff argues that Order 41, rule 4 can only be invoked before the filing of the affidavit. But as is clear from the wording of Order 41, rule 4 itself, an irregular affidavit may be "used" with the leave of the court.

18. I am willing to give leave in this case for the affirmations to be used notwithstanding the irregularity. I do so because there can be no doubt about the identity of the deponents in the present case. I believe the primary reason which requires the giving of a residential address is one of identification. Here, the deponents are the defendants in the action and there is no question about their identity being uncertain or unknown.

19. It follows that I will not strike out the affirmations filed on 5 February 2004, the supplemental affirmations filed on 25 February 2004 nor the defendants' re-amended Defence.

20. I turn to consider the question of costs. The plaintiff is correct on the construction of Order 41, rule 1(4), but I was not prepared to strike out any of the affirmations or the amended Defence. Although the plaintiff had succeeded in persuading me that the affirmations were irregular, it was never likely that the affirmations or the re-amended Defence would be struck out. I do not wish to encourage any party to take unnecessary technical points. But the defendants could have invoked Order 41, rule 4 below or asked for a direction under Order 41, rule 1(4) permitting occupational addresses to be used. So the defendants must bear at least part of the blame for the appeal. In all the circumstances, I would award the plaintiff half of the costs of the appeal. The plaintiff had submitted a bill of costs based on $200 per hour, totalling $2,819. I think the hourly rate is too high, bearing in mind that when the plaintiff was employed at the Social Welfare Department, his pay was HK$11,820. Doing the best I can, I would award a sum of $500 as costs.

21. In relation to the costs below, the plaintiff was ordered to pay $3,800 costs to the defendants. But that was on the basis that the plaintiff was wrong on Order 41, rule 1(4). I would set aside that order. It was these defendants' failure to comply with the order of Registrar C. Chan which led to the application. The plaintiff should also be given half of the costs of the application before the master which I would assess in the sum of $250.

22. All such costs are to be paid forthwith.

23. So I give leave for the supplemental affirmations to be used in evidence notwithstanding the irregularity in the addresses given. Subject to that the appeal is dismissed.

Representation:

The Plaintiff in person

Miss Selina Hui of Messrs Liu, Chan & Lam, for the Defendants

HCA890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.890 OF 2003

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REASONS FOR DECISION

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Introduction

1. By summons dated 23 July 2003, the plaintiff sought to strike out paragraphs 5b, 5c and 23 of the Amended Defence on the ground that they were frivolous and vexatious under Order 18, rule 19 of the Rules of the High Court. By a second summons dated 9 October 2003, the plaintiff applied to strike out paragraph 5a of the Amended Defence on the ground that it is scandalous under the same rule of court. The plaintiff by a summons dated 22 October 2003 applied to amend the Amended Defence.

2. All these summonses came before the master on 27 October 2003. He dismissed the plaintiff's striking out applications and allowed the defendant's application to amend. Dissatisfied, the plaintiff appealed. On 18 December 2003, I dismissed his appeals with costs. These are my reasons.

The striking out applications

3. I first deal with the striking out applications.

4. At the material times, the plaintiff was a social security assistant of the Social Welfare Department on contract. On 3 January 2003, he was dismissed from service with effect on the following day without payment in lieu of notice. He commenced the present action for defamation against the defendants. In paragraph 3 of the Amended Statement of Claim, the plaintiff referred to the Notice of Intended Dismissal dated 11 December 2002 sent by the 4th defendant to the District Social Welfare Officer (Yau Tsim Mong) ("The Notice"), seeking approval for dismissing the plaintiff. He alleged that the statements contained in the Notice were defamatory. In paragraph 4 of the Amended Statement of Claim, the plaintiff alleged, inter alia, that a report prepared by the 3rd defendant on one of the incidents leading to his dismissal was defamatory ("the Report").

5. In paragraph 4 of the Amended Defence, the 4th defendant denied that the statements in the Notice were defamatory. In paragraph 5 of the Amended Defence, the 4th defendant put forward an alternative plea of justification. He then gave the particulars of the relevant events in paragraphs 5a, 5b and 5c.

6. The 3rd defendant dealt with the plaintiff's averment in a similar way. In paragraph 22 of the Amended Defence, he denied that the Report was defamatory. He advanced a plea of justification in paragraph 23 of the Amended Defence.

7. The defendant's version of the events was basically denied by the plaintiff. For present purposes, it is not necessary to set out the differences between the parties on those events.

8. Applying to strike out paragraphs 5a, 5d, 5c and 23, the plaintiff argued that the versions of the events put pleaded by the 3rd and 4th defendants were untrue. He submitted that there was no triable issue and the defence of justification must fail.

9. In my view, the plaintiff's submission is wholly misconceived. The issues given rise by paragraphs 5a, 5b, 5c and 23 of the Amended Defence cannot be resolved on pleadings or affidavit. The court will not strike them out simply because the plaintiff maintains that they are not believable. It is a matter for trial and not for striking out.

10. The master was correct in dismissing the plaintiff's striking out applications.

The amendment application

11. I next turn to the defendant's application to amend. It is not necessary to set out the re-amendments in detail. Suffice it to say that the effect of the re- amendments is to clarify certain factual issues. I fail to see any grounds for not allowing the re-amendments. The plaintiff submitted that the re-amendments gave rise to some inconsistency. In my view, even assuming that there were inconsistencies as alleged, it is not a ground for refusing the re-amendments. Such inconsistency, if sustained at trial, goes to credibility of the witnesses and the merits of the defence.

Conclusion

12. For the above reasons, I dismissed the plaintiff's appeals with costs.

Representation:

Plaintiff in person, present

Mr Michael Cheung of Messrs Liu, Chan & Lam, for the 1st to 4th Defendants