HCA 1677/2015
[2023] HKCFI 2851
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1677 OF 2015
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BETWEEN |
| | GUANGDONG YINGGAO SHIPPING LIMITED | Plaintiff |
| | (廣東盈⾼航運有限公司) | |
| | (SUBSTITUED BY ORDER OF MASTER HUI DATED 20 JANUARY 2021) | |
| | and | |
| | SECRETARY FOR JUSTICE | Defendant |
_____________
| Before: | Deputy High Court Judge Le Pichon in Chambers |
| Date of Hearing: | 26 October 2023 |
| Date of Decision: | 26 October 2023 |
| Date of Reasons for Decision: | 6 November 2023 |
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REASONS FOR DECISION
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1. This is the Plaintiff’s appeal from the Decision of the Registrar Simon Kwang dated 7 July 2023 (“the Summons”) dismissing the Plaintiff’s application for an order that the witness statement of Lui Siu Fai (“LSF”) filed on 9 May 2023 be expunged and that the whole of the amended defence filed on 20 October 2021 (“Amended Defence”) be struck out. At the conclusion of the hearing, the Plaintiff’s appeal was dismissed with costs to be summarily assessed. My reasons appear below.
Background facts
2. The Plaintiff (who was substituted on 20 January 2021) is a related company of the original plaintiff which was wound up in December 2016. This action, commenced on 24 July 2015, is a claim against the Department of Justice (“the Defendant”) for damages for trespass to property and chattels and violations of constitutional rights arising out of conduct by officers of the Customs and Excise Department (“CED”) who, on 11 and 12 January 2012, boarded 2 vessels owned by the Plaintiff at the River Trade Terminal.
3. The procedural history is as follows:
(i) on 29 February 2016, Master M Wong directed, inter alia, that the parties exchange all statements of factual witnesses on or before 6 June 2016, such statements to stand as evidence in chief unless otherwise directed by the trial judge;
(ii) the Defendant’s list of documents filed on 29 March 2016 listed 4 original statements of 3 CED officers who had carried out the operation on 11 and 12 of January 2012;
(iii) on 15 April 2016, the Defendant wrote to the Plaintiff’s solicitors (“HTW”) requesting written confirmation of the date and venue for exchange of witness statements but never received a reply even after the deadline of 6 June 2016;
(iv) on 15 August 2016, the Defendant’s 4 factual witnesses signed their witness statements;
(v) on 7 September 2016, with a CMC scheduled for 21 September 2016, the Defendant wrote to HTW again in connection with its earlier letter of 15 April 2016 which remained unanswered;
(vi) the Defendant’s listing questionnaire filed on 15 September 2016 listed the names of 4 witnesses, stating that the parties would exchange their respective witness statements as to the facts within 35 days:
(vii) by consent, on 19 September 2016, Registrar KW Lung ordered the exchange of witness statements within 35 days of the order, namely, by 24 October 2016;
(viii) HTW never responded to the Defendant’s letters sent in April and September 2016 for the exchange of witness statements and no exchange took place on 24 October 2016;
(ix) on 2 November 2016, the Defendant proposed to HTW to have the exchange take place on 5 November 2016 at 3 pm at the High Court;
(x) HTW replied on 4 November 2016, counter proposing that the exchange take place on 9 November 2016 at 3 pm at the High Court;
(xi) the Defendant’s copy of HTW’s letter of 4 November 2016 shows a handwritten revision of the time of exchange from 3 pm to 3:30 pm;
(xii) thereafter, there was no correspondence from either the Plaintiff or HTW complaining or putting on record that the Defendant had failed to exchange witness statements pursuant to the agreement for exchange to take place on 9 November 2016;
(xiii) on 12 July 2021, some 4 years and 8 months later, the Plaintiff amended its statement of claim resulting in the Amended Defence of 20 October 2021;
(xiv) meanwhile, on 6 October 2021, another firm (“KHM”) replaced HTW as the Plaintiff’s solicitors;
(xv) while the Plaintiff’s timetabling questionnaire (“TQ”) of 22 September 2022 proposed a direction for exchange of witness statements after discovery, the Defendant’s TQ at F3 referred to Chow Wai Tong as a factual witness but the “template” wording of F3[1] was revised to “supplemental[2] statements”, proposing that “supplemental witness statements” be filed and exchanged by both parties;
(xvi) on 15 November 2022, Master Ho ordered the exchange of “witness statements and/or supplemental witness statements” by 27 January 2023;
(xvii) on 15 March 2023, the Plaintiff’s current solicitors (“TNTL”) took over from KHM;
(xviii) on 31 March 2023, the Plaintiff sought an unless order for the Defendant to file and serve its “witness statements and/or supplemental witness statements[3]” within 7 days;
(xix) on 11 April 2023, after hearing argument, Master Kot ordered the Defendant to file and serve its “supplemental witness statement[4]”, if any, within 21 days;
(xx) by consent, on 4 May 2023, Master Ho granted the Defendant a further extension of time to “exchange its witness statement(s) and/or supplemental witness statement(s)” with the Plaintiff by 9 May 2023 at 5 pm on an unless basis (“the May 2023 unless order”).
4. The Summons seeks (a) to expunge LSF’s witness statement filed on 9 May 2023; and (b) that the whole of the Amended Defence filed on 20 October 2021 be struck out.
5. Registrar Kwang dismissed the Summons, culminating in the present appeal.
This appeal
6. The Plaintiff’s ground(s) for striking out the Amended Defence is/are that the Defendant failed to comply with the unless order dated 4 May 2023 and/or Order 25, rule 6 (1); and further and/or in the alternative there is no evidence to support the Defendant’s case in the Amended Defence.
7. For the Plaintiff to succeed in striking out the Amended Defence, it must satisfy the court that it is plain and obvious that (i) the Defendant never exchanged its witness statements; and (ii) LSF is not a competent witness.
Exchange of the Defendant’s witness statements
8. In support of its Summons, the Plaintiff filed the 2nd affirmation of Chin Kam Chiu dated 23 June 2023 (“Chin 2nd”), currently the chairman of the Keen Lloyd Group and the person in charge of the Plaintiff. Assertions were made in §§4, 9, 11 and 15 of Chin 2nd to the effect that no statements were given or produced by the Defendant before the expiration of the May 2023 unless order.
9. Those assertions were based on (a) the fact that the document index of the court search does not show the filing of the Defendant’s witness statements; and (b) the Plaintiff’s ‘speculation’ that the Defendant’s factual witnesses “were called off to give or produce any statements of factual witness in order to avoid criminal liability” as a result of Reasons of Verdict in criminal proceedings before District Court Judge Tam Sze Lok on 26 June 2019 who disbelieved their evidence relating to the export cargo manifests.
10. As regards (a), the May 2023 unless order did not require the filing of witness statements which were only ordered to be exchanged. The fact that the filing of such statements is not recorded in the court index does not mean that they have not been exchanged. Filing is not required absent an order to that effect.
11. In its skeleton dated 19 October 2023, the Defendant took issue, inter alia, with the repeated submissions made in the Plaintiff’s skeleton that the Defendant had failed to produce any witness statements of its witnesses.
12. The Plaintiff (who was allegedly taken by surprise) caused urgent enquiries to be made. As a result, it sought leave to file Mr Chin’s 4th affirmation dated 25 October 2023 (“Chin 4th”).
13. At the hearing, Chin 4th was read de bene esse.
14. In pertinent part:
(a) §4 of Chin 4th referred to the fixing of time for exchange witness statements at 3 pm on 9 November 2016;
(b) §5 stated that at 2.45 pm HTW’s representative provided the Defendant with the witness statement of the Plaintiff’s witness;
(c) §6 is a hearsay account of what the Defendant’s representative stated to HTW’s representative[5], namely that “he was only being told to collect the Plaintiff’s witness statement and was not instructed to provide the Plaintiff with the Defendant’s witness statements”;
(d) in §7, Mr Chin gave an account of a visit made to him (when he was in custody) on 15 November 2016 by Mr Ho Chun Ki Fred (“Mr Fred Ho”), the then handling solicitor at HTW who recounted to Mr Chin the events described in (a) to (c) above whereupon Mr Chin immediately instructed him to make an application to court for an adjournment of these proceedings until the criminal proceedings have concluded;
(e) §§10-11 referred to Mr Chin being advised on 19 October 2023 of the Defendant’s submissions regarding the 9 November 2016 exchange of witness statements, causing Mr Chin to call Mr Fred Ho the following morning (20 October 2023) at 9 am requesting him “to search for the witness statements” of the 4 officers;
(f) §12 exhibited HTW’s reply dated 20 October 2023. The English translation read:
“RE: High Court Case No. HCA 1677/2015.
You have called us to enquire whether we have received any witness statement of the Defendant from the Department of Justice during the period when we were handling the action on behalf of the Plaintiff. After checking our files, we do not have any witness statement of the Defendant, nor can we find any record for the receipt of witness statement of the Defendant.”
Striking out the Amended Defence
15. Mr Simon Young, counsel for the Plaintiff, maintained that based on this evidence, and the absence of evidence from the Defendant, the Plaintiff has shown that the Defendant did not exchange its witness statements on 9 November 2016. It is now too late for the Defendant to do so and the May 2023 unless order should be given effect.
16. Mr Young submitted that Chin 2nd was before the Master and there are passages in that affirmation that state that the Plaintiff never received the 4 witness statements. In reaching his decision, the Master must accept that those are the facts.
17. That submission has to be viewed against the backdrop of how the Plaintiff’s representative presented the Plaintiff’s case to Master. The transcript shows that when the Master asked the Plaintiff’s representative the grounds upon which the relief was sought, as for paragraph 1 of the Summons (about LSF’s competence), all that was said was that LSF was not physically present on the vessel. As for paragraph 2 (to strike out the Amended Defence) the Plaintiff’s representative never made the point that the Plaintiff never received the 4 witness statements and never referred the Master to the various passages in Chin 2nd to that effect.
18. Mr Young accepted that based on the transcript, the issue of non-service of witness statements was not expressly raised but he highlighted the fact that when the Master asked the Defendant’s representative how many witness statements had been exchanged, the reply was there was just one and no mention was made of the other 4 witness statements. Further, the Defendant did not seek to put in evidence to refute the Plaintiff’s evidence in Chin 2nd.
19. When it is said that there is no evidence to refute what is asserted in Chin 2nd, the context is important. Had the point been raised before the Master, the matter would have been addressed. The fact is that the point was never raised by the Plaintiff at the hearing.
20. Leaving aside Chin 4th for the moment, what the procedural history shows is that from the time of Master M Wong’s order[6] made in February 2016 for the exchange witness statements until 9 November 2016, the Plaintiff not only failed to respond to the Defendant’s 2 letters regarding such exchange prior to the 2 court deadlines (6 June and 24 October 2016)[7], but also ignored them. The Defendant, on the other hand, was anxious to comply with the court orders.
21. Given that background, Mr Mike Lui SC, leading counsel for the Defendant submitted that it is inherently implausible that the Defendant would agree to an appointed time and place for the exchange of witness statements but, according to the hearsay account in Chin 4th, its representative was there simply to collect the Plaintiff’s witness statement.
22. Turning to Chin 4th, it is riddled with difficulties:
(i) although HTW was not replaced as the Plaintiff’s solicitors in HCA 1677 until 6 October 2021, based on the papers for this hearing, its last involvement in HCA 1677 appears to be Mr Fred Ho’s oral hearsay account[8] of the 9 November 2016 exchange when he visited Mr Chin who was in custody on 15 November 2016;
(ii) notwithstanding Mr Chin’s instructions given to Mr Fred Ho upon hearing the latter’s account of the events of 9 November 2016, there is no evidence that any action was taken by HTW to carry out those instructions, for example, by writing to the Defendant referring to Plaintiff’s instructions or making an application for a stay;
(iii) if what was recounted by Mr Fred Ho is true, the DOJ (representing the Government) would have been engaging in unprofessional and entirely unacceptable conduct, intentionally misled HTW into attending the High Court for an exchange witness statements when it had no intention of doing so. In those circumstances, it is inexplicable and unbelievable that HTW would not have made a complaint or put on record what the DOJ had done;
(iv) it is also inexplicable that having ceased to act as the Plaintiff’s solicitors in HCA 1677 in October 2021, upon receiving Mr Chin’s telephone call[9] 2 years later, HTW still had files that it could review;
(v) if Mr Chin’s account of what he had been told by Mr Fred Ho on 15 November 2016 is true, knowing (as he must) that HTW ceased to act in HCA 1677 at least 2 years earlier, Mr Fred Ho could simply have been asked to confirm what he had told Mr Chin 7 years earlier.
23. For those reasons, I have serious misgivings as to the veracity of the matters stated in Chin 4th and reject that evidence.
24. Plainly, the court is not in a position to resolve the conflict of evidence as to what really transpired on 9 November 2016. Nor would further evidence on that issue assist.
25. The Plaintiff (who is the applicant for striking out the Amended Defence) bears the burden of demonstrating that it is plain and obvious that the Defendant never exchanged its witness statements on 9 November 2016. On the evidence before the court, the Plaintiff is unable to do so. For that reason alone, the Plaintiff cannot succeed in striking out the Amended Defence.
The competence point
26. This is premised on the action involving the trial of issues as to (a) whether the operation carried out by the CED on 11-12 January 2012 was “lawful and bona fide”, (b) whether the masters of the relevant vessels provided “genuine Hong Kong export manifests” to the 3 CED officers who had given witness statements, and (c) how the “alleged manifests” were obtained by those officers[10]. Those issues are said to be the central or material issues.
27. But the complaint in the amended statement of claim (“ASOC”) is about the CED officers boarding the vessels that the Plaintiff had leased from the River Trade Terminal as “private premises” without valid search warrants and unlawfully seized the containers that were on board. In other words, the causes of action pleaded are confined to trespass to premises and/or goods. The issues referred to in §26 above are not pleaded.
28. The particulars given in §19 of the ASOC are confined to CED’s conduct of trespassory entry into the berths (i.e. private premises) without search warrants and boarding the vessels as trespassers purportedly in accordance with section 21 (1) (a) of the Import and Export Ordinance, Cap 60, and of wrongfully and/or unlawfully seizing (and thereafter refusing to return to the Plaintiff) the unlawfully seized articles.
29. Nothing is pleaded in the ASOC about fraudulent conduct, fabrication of the manifests, malicious prosecution.
30. It is relevant to mention that in relation to the witness statements of the Plaintiff’s 2 witnesses (Leung Ka Yip and Mr Chin) in these proceedings, after a contested hearing on 16 August 2023, substantial passages in those witness statements concerning the issues referred to in §26 above (with serious allegations of fraud, malicious prosecution and fabrication of documents made against the CED officers) were struck out by Master Kwong[11].
31. The objection to LSF’s competence rests solely on the fact that he was not physically present on the vessel at the time of the operation and so does not have personal knowledge of the ‘misconduct’ (fraud, malicious prosecution and fabrication of documents) that occurred.
32. It is accepted[12] that LSF was the person in charge of the entire operation. In that capacity he would have received reports from his subordinates throughout the operation. In my view, LSF is competent to testify as to how the entire operation was carried out.
33. For those reasons, I do not accept the Plaintiff’s submissions on the competence point.
34. Accordingly, the appeal was dismissed.
| | (Doreen Le Pichon)
Deputy High Court Judge |
Mr Simon N M Young, instructed by Tung, Ng, Tse & Lam, for the Plaintiff
Mr Mike Lui SC, instructed by Department of Justice, for the Defendant
[1] See Appendix A to PD 5.2.
[2] This summons was and could be only consistent with the fact that the Defendant had produced witness statements earlier.
[3] The Plaintiff's summons specifically referred to "supplemental witness statements". If the Defendant had never exchanged factual witness statements previously, there would be absolutely no reason for the Plaintiff to refer to the filing and service of "supplemental" witness statement(s).
[4] This order was and could only be consistent with the fact that the Defendant’s witness statements had been produced earlier.
[5] Neither representative was identified by name. Nor was the maker of this hearsay account identified by name.
[6] See §3 (i) above.
[7] See §3 (i) and (vii) above.
[8] Mr Fred Ho’s account was what he was told by HTW’s unidentified representative present at the exchange.
[9] See §11 (e) and (f) above.
[10] The Plaintiff's skeleton at §§31, 32
[11] At the hearing, the court was informed that the Plaintiff has filed an appeal against Master Kwong’s decision.
[12] In HCA 1804/2021, both LSF and Mr Chin filed affirmations. In Mr Chin's affirmation, he acknowledged LSF’s involvement in CED's investigation and operation regarding suspected cross-border smuggling activities. LSF (a Senior Inspector and Unit Commander) was responsible for planning and overseeing the daily operation and investigation of the Unit (C/379-383).