HAHN-SHIN, MICHELINE SUCK-HI v. GOVERNMENT COUNSEL, MS MICHELLE SOONG

HCA2242/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2242 OF 2008

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DECISION

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Appeal

1.  By judgment dated 23 December 2008, Registrar Au-Yeung struck out the plaintiff’s claim and dismissed the action under Order 18, rule 19(1)(a) of the Rules of the High Court, and made an order nisi that the plaintiff should pay the defendant costs assessed at HK$15,000 (“the 1^st Order”).  After hearing the parties on 25 February 2009, Registrar Au-Yeung made the costs order nisi absolute and ordered the plaintiff to pay the defendant costs of the hearing assessed at HK$4,000 (“the 2^nd Order”).

2.  The plaintiff now appeals against the 2^nd Order : see the notice of appeal dated 3 March 2009.  At the outset of the hearing on 8 June 2009, I tried to clarify with the plaintiff if she also wanted to appeal against the 1^st Order.  She was unable to give me a direct answer.  She went on to make submissions, which confirmed the impression that I had when I read her materials, namely, she was dissatisfied with the 1^st Order.  That being the case, I will proceed on the basis that she wishes to appeal against the 1^st Order as well.  But since the notice of appeal was not taken out within 14 days after it was made, leave to appeal out of time is required : see Order 58, rule 1(3) of the Rules of the High Court.

Background

3.  The present action stemmed from HCA1499/2006.  In that action, the plaintiff sued “The Government of Hong Kong Special Administrative Region Bailiff [Operation Section]” for damages.  She alleged that the bailiff had seized all items of possession from her except some clothes and bedding mattress pursuant to a writ of fieri facias and had sold them wrongfully at a gross undervalue.  That action was struck out, which was upheld by the Court of Appeal : see CACV62/2007, 17 December 2007, unreported.

4.  The defendant herein, Ms Michelle Soong, is a government counsel.  She represented the defendant in HCA1499/2006.

5.  In November 2008, the plaintiff commenced the present action against Ms Soong personally.  In her home-made statement of claim, she pleaded that in HCA1499/2006, the then Registrar Chan had given directions to the parties for filing of evidence for the striking out application.  After the hearing, she inquired with Ms Soong if she (the plaintiff) might submit all the documents to the court.  Ms Soong then said “not to file”.  The plaintiff took it to mean that there was no need for her to file any evidence.  She therefore did not file any for the striking out application.  Because of the lack of evidence in support of her claim, it was struck out.

6.  As noted, Registrar Au-Yeung struck out her statement of claim and dismissed the present action. 

Appeal against the 1^st Order out of time

7.  I first deal with the plaintiff’s appeal against the 1^st Order out of time.

8.  The plaintiff’s submissions are basically a repetition of her complaints against the bailiff for wrongfully seizing her properties and selling them at a gross undervalue.  She also complained that because of Ms Soong’s misleading statement, she had not placed before Registrar Chan the requisite evidence in support of her claim against the bailiff.

9.  She advanced the same submissions before Registrar Au-Yeung who roundly rejected them thus :

“The Law

5.    In law, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process, or in regard to any other step in the proceedings.  Neither does a litigant have a duty to ‘correct’ his opponent’s mistakes.  The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.  See Business Computers International Ltd v. Registrar of Companies [1988] Ch 229, followed in Hong Kong in Wong Yu Cho Rolly trading as Marco Polo and China Oversea Technical Development v. Louie Wong & another, DCCJ 2805, 2806 and 2930 of 2007.

Application of the Law

6.    As in HCA 1499 of 2006, the Plaintiff still directed her arguments to the manner in which the writ of fi fa was executed, the number of items seized, the value of the items seized and their sale at a gross value.  [See paragraph 27 of CACV 62 of 2007.]  These are quite irrelevant to the Defendant’s application to strike out, which turns on legal arguments only.  Even if the Plaintiff can come up to proof on her version of facts, it is plain and obvious that there is no reasonable cause of action against Ms. Soong.  The statement of claim ought to be struck and I limit myself to doing so only under the first limb of Order 18, rule 19.  The pleadings are not capable of amendment.  The claim should be dismissed.”

I agree.

10.  In my view, there is a further hurdle which the plaintiff cannot possibly surmount.

11.  The gist of the plaintiff’s complaint is that Ms Soong had misled her into believing that she needed not file any evidence for the striking out application in HCA1499/2006, which eventually led to her claim against the bailiff being struck out.  But any evidence that she wanted to file in support of her claim would not advance her case a bit.  For legally her claim was incurably bad.  As pointed out by the Court of Appeal in CACV62/2007, her claim was absolutely barred by section 4(5) of the Crown Proceedings Ordinance, Cap.300 (paras.18-21 of the judgment).  Thus whatever evidence she might otherwise have filed in order to support her case but for what Ms Soong had allegedly said, her claim against the bailiff was unarguable and doomed to fail.  In other words, the result of the striking out application would be just the same even if she had filed the evidence.

12.  It follows that the plaintiff will never be able to properly plead and establish the causal link between what Ms Soong had allegedly said and the resultant loss that she might have suffered.  Her claim against Ms Soong is therefore untenable and must fail.

13.  I have also considered the cause of action based on misfeasance in public office, although the plaintiff has not expressly pleaded it.  Assuming but without deciding that Ms Soong was acting in her office as government counsel when she allegedly told the plaintiff not to file any evidence, the plaintiff, as I have said, would still be unable to properly plead and establish the casual link between what Ms Soong had said and the resultant loss.  So I do not think the plaintiff can possibly have a cause of action based on misfeasance in public office against Ms Soong either.

14.  In my view, the Registrar was entirely correct in striking out the plaintiff’s claim and dismissing her action.  There is no merit whatsoever in her appeal against the 1^st Order.  I will refuse to give her leave to appeal out of time.

Appeal against the 2^nd Order

15.  I now turn to deal with the plaintiff’s appeal against the 2^nd Order.  It is a costs order which will not be lightly disturbed on appeal unless it is unreasonable or the Registrar had erred in law : Hong Kong Civil Procedure 2009, Vol. 1, para. 58/1/6.

16.  The normal rule is costs should follow the event.  I can see nothing why this rule should not be followed when the Registrar struck out the plaintiff’s claim.

17.  As to quantum of costs for the substantive application, Mr Leung, senior government counsel, who acted for Ms Soong below has more than 12 years of professional experience.  He claimed an hourly rate of HK$3,500, which was, as rightly recognized by the Registrar, rather generous.  The Registrar accepted his hourly rate.  She then took into the time spent for preparation and the two hearings involved and came to the figure of HK$15,000.  I find her assessment reasonable and see no reason why I should disturb it. 

18.  For the hearing on 25 February 2009 concerning the 2^nd Order costs should also follow the event.  The Registrar’s assessment of HK$4,000 is again reasonable.  I will not disturb it.

19.  The plaintiff’s appeal against the 2^nd Order is therefore dismissed.

Costs

20.  At the end of the hearing, I invited the parties to make submissions on costs.  The plaintiff did not say much.  Mr Leung asked for costs should I dismiss the appeal.  He asked me to make a gross sum assessment.  He claimed an hourly rate of HK$3,000 and had spent a total of 2½ hours (including the actual time spent in court).  He asked for a sum of HK$7,500.

21.  In my view, costs should follow the event.  I agree with Mr Leung that it is an appropriate case to make a gross sum assessment.  As to quantum, I find the figure proposed by Mr Leung reasonable and accept it.  I will therefore order the plaintiff to pay the defendant costs of this appeal assessed at HK$7,500 forthwith.

HCA 2242/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2242 OF 2008

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J U D G M E N T

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1.  This is an application to strike out the claim under various limbs of Order 18, rule 19 of the Rules of the High Court.

Background

2.  The bailiff has allegedly seized all items of possession from the Plaintiff except some clothes and bedding mattress pursuant to a writ of fieri facias.  The items were eventually sold.  The Plaintiff sued “The Government of Hong Kong Special Administrative Region Bailiff [Operation Section]” in HCA 1499 of 2006 for damages suffered as a result of the wrongful sale of her items at a gross undervalue.  Her action was struck out, which decision was upheld by the Court of Appeal: CACV 62 of 2007.  In that action, Ms. Soong acted for the defendant.

3.  About a year later, the Plaintiff instituted the present action against Ms. Soong.  In summary, the Plaintiff claimed that the former Registrar Mr. C. Chan had given directions for the parties in HCA 1499/2006 to file affidavit evidence.  However, allegedly, relying on Ms. Soong’s words “not to file”, the Plaintiff had failed to file evidence which eventually led to dismissal of HCA 1499 of 2006.  Ms. Soong now seeks to strike out the present action.

4.  Neither party has filed any affidavit evidence save that the Plaintiff has lodged a statement dated 11 December 2008 “on the whole of story”.  For present purposes I accept the statement as part of her evidence.  She has also addressed me orally and her submission is mixed up with factual assertions, her own observations and arguments.

The Law

5.  In law, there is no duty of care owed by one litigant to another as to the manner in which the litigation is conducted, whether in regard to service of process, or in regard to any other step in the proceedings.  Neither does a litigant have a duty to “correct” his opponent’s mistakes.  The safeguards against impropriety are to be found in the rules and procedure that control the litigation and not in tort.  See Business Computers International Ltd v. Registrar of Companies [1988] Ch 229, followed in Hong Kong in Wong Yu Cho Rolly trading as Marco Polo and China Oversea Technical Development v. Louie Wong & another, DCCJ 2805, 2806 and 2930 of 2007.

Application of the Law

6. As in HCA 1499 of 2006, the Plaintiff still directed her arguments to the manner in which the writ of fi fa was executed, the number of items seized, the value of the items seized and their sale at a gross value.  [See paragraph 27 of CACV 62 of 2007.]  These are quite irrelevant to the Defendant’s application to strike out, which turns on legal arguments only.  Even if the Plaintiff can come up to proof on her version of facts, it is plain and obvious that there is no reasonable cause of action against Ms. Soong.  The statement of claim ought to be struck and I limit myself to doing so only under the first limb of Order 18, rule 19.  The pleadings are not capable of amendment.  The claim should be dismissed.

Costs

7.  Since the Defendant has succeeded, I order, on a nisi basis that costs of the action, including this application for striking out should be paid by the Plaintiff to the Defendant.  It is appropriate to order costs on a gross sum basis.  I have examined the costs statement presented by Mr. Leung to me at the last hearing.  The action is simple and is struck out at an early stage.  It can be handled by a junior government counsel.  Notwithstanding his competence, Mr. Leung has asked for only an hourly rate of $3,500.  It is a generous rate for government counsel of over 12 years’ standing.

8.  The time spent on this case was nowhere excessive.  There was no unnecessary expenses.  The 1^st call over hearing lasted for about 15 minutes and the 2^nd hearing before me took about 1-½ hours.  Overall, the costs claimed in the sum of $15,000 was reasonable and I am minded to allow them in full.

Conclusion

9.  I order that:

(i)  The statement of claim be struck out and the action be dismissed under Order 18, rule 19(1)(a) of the Rules of the High Court.

(ii)  On a nisi basis, the Plaintiff should pay costs to the Defendant assessed on a gross sum basis at $15,000.  This order on costs will become absolute unless either party applies for variation by summons to me within 14 days of the handing down of this judgment.