THAPA KAMALA v. HO LAI MING (Deputy Special Magistrate at Eastern Magistrates’ Courts)

DCCJ 1719/2019

[2022] HKDC 102

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1719 OF 2019

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BETWEEN
	THAPA KAMALA	Plaintiff
and
	HO LAI MING (Deputy Special Magistrate at Eastern Magistrates’ Courts)	Defendant

-------------------------

Coram: His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions: 30 November 2021, 14 December 2021 and 20 December 2021

Date of Decision: 26 January 2022

 

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DECISION

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THE APPLICATION

1.  By Decision dated 1 November 2021 (“the Decision”), this court:

(1)  dismissed the defendant’s summons filed on 19 July 2019 to strike out the Statement of Claim indorsed on the Writ of Summons issued on 4 April 2019 (“the Striking-out Summons”); and

(2)  granted interlocutory judgment in favour of the plaintiff pursuant to her summons filed on 23 July 2019 (“the Summons for Judgment”).

2.  This court also made a costs order nisi that:

(1)  The defendant shall bear the plaintiff’s costs of the Striking-out Summons and the Summons for Judgment (collectively, “the Summonses”), with certificate for counsel, to be taxed if not agreed;

(2)  Costs on liability of this action up to the date of the Decision be to the plaintiff, to be taxed if not agreed.

3.  By letter dated 2 November 2021, the plaintiff applied to vary the first paragraph of the costs order nisi and asked the court to include all “reserved costs” therein.

4.  By another letter dated 12 November 2021, the plaintiff also asked the court to order that the costs of the Summonses shall be payable forthwith.

5.  The defendant indicated that she had no objection to bear all reserved costs in relation to the Summonses.  Her only objection in the present application is that there should not be an order for immediate payment of the plaintiff’s costs of the Summonses.

LEGAL PRINCIPLES

6.  Order 62 rule 9D of the Rules of the District Court (Cap.336H) provides that:

“(1) Subject to paragraphs (2) and (4), the costs of any proceedings shall not be taxed until the conclusion of the action.

(2) If it appears to the Court when making a costs order that all or any part of the costs ought to be taxed at an earlier stage it may order accordingly.

(3) No order may be made under paragraph (2) in a case where the person against whom the costs order is made is an aided person.

(4)  Where it appears to a taxing master that there is no likelihood of any further order being made in a cause or matter, he may order the person entitled to payment of the costs of any interlocutory proceedings which have taken place to commence taxation proceedings in accordance with rule 21.”

7.  Both parties had referred this court to the case of Midland Business Management Ltd & Another v Lo Man Kui (also known as Howard Lo) [2011] 2 HKLRD 667 in which Lam J (as his Lordship then was) had the following to say:

“7. In my judgment, what emerges from Kickers [International SA v Paul Kettle Agencies Ltd [1990] FSR 436] and Naf [Naf SA v Dickens (London) Ltd [1993] FSR 424] is neatly summarized by Hoffmann J (as he then was) at p.429 of Naf,

‘I indicated in a judgment in [Kickers] the matters which ought to be taken into consideration in deciding whether or not to make an order for immediate taxation and as I remember them, what they were concerned with was, first of all, the extent to which the proceedings are from a taxation point of view severable and self-contained from the rest of the action, secondly the justice of making such an order having regard to the effect on the cash flow of the respective parties, and the third matter to be taken into account was whether the amount at stake on the taxation was sufficient to justify putting the parties to the expense of having a separate taxation for it rather than bringing it in on the final taxation.’

8. In Kickers, Hoffmann J also referred to the possibility that there may be no trial. His Lordship also emphasized that his list of factors was not intended to be exhaustive, see p.439. Thus Miss Tam is correct in pointing out that the Kickers approach is not set in stone and the court must still exercise its discretion having regard to all relevant circumstances.

9. Under the Civil Justice Reform, the court is encouraged to order immediate payment of costs of interlocutory proceedings and if possible by way of summary assessment of costs. The objective is to discourage unnecessary and disproportionate interlocutory applications. It is recognized that the lack of immediacy of orders to pays costs ‘in the cause’ or ‘in any event’ weakens costs as a sanction against unwarranted applications or resistance, see paras.529 to 536 of the Final Report of the Chief Justice’s Working Party on Civil Justice Reform.

10. By reason of Order 62 Rule 5(1)(aa), the court should take into account of the underlying objectives in Order 1A rule 1 in the exercise of its discretion. The objectives in rule 1(a), (c) and (d) are particularly relevant in the present context. In my view, the approach recommended by the Working Party should be adopted in furtherance of these objectives. Unwarranted interlocutory applications should normally be sanctioned by an immediate costs order.

11. In so saying, I must not be taken as saying that an immediate costs order should be made against every unsuccessful party in interlocutory application. I can readily see that there are cases where such party may have a proper justification for making an interlocutory application even though he fails at the end of the day. There could also be cases where the court considers that it would be more appropriate to make an order ‘in any event’ or ‘in the cause’ or to reserve costs.

12. However, what I do say is that after the Civil Justice Reform the court is more astute to the impact of costs on legal proceedings and order for immediate payment of costs will be made more readily as a discipline against unmeritorious interlocutory applications.”

8.  Lam J’s decision was referred to by Ribeiro PJ in The liquidator of Wing Fai Construction Company Limited v Yip Kwong Robert & Others (2012) 15 HKCFAR 454.   Having endorsed what Lam J stated, his Lordship further held that:

“7. Whether or not the immediate payment of costs should be ordered is quintessentially a matter within the court’s discretion. The former practice was generally to order interlocutory costs to be ‘in the cause’, to be settled up at the end of the proceedings where orders which may have been made in favour of the respective parties might be set-off against one another and when the overall result of the proceedings can be taken into account. However, it is now generally recognized that such an approach may lead to procedural laxity and a damaging proliferation of interlocutory or satellite litigation. The first four of the underlying objectives are relevant to redressing such tendency by emphasising the need:

‘... (a) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court; (b) to ensure that a case is dealt with as expeditiously as is reasonably practicable; (c) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings; (d) to ensure fairness between the parties...’

8. In pursuing the underlying objectives, it is of course necessary to factor in any possible unfairness or prejudice which the party against whom an order for immediate payment of costs is sought may suffer in consequence of such an order.”

CONSIDERATION OF THE RELEVANT FACTORS

9.  Ms Chan submitted on behalf of the defendant that there should not be an order for immediate payment of costs because:

(1)  From a taxation point of view, the Summonses are neither severable nor self-contained from the rest of the action for assessment of damages;

(2)  The plaintiff has not placed before the court any evidence in relation to her financial position and the effect on her cash flow in the event no immediate payment of costs is ordered;

(3)  There is no justification for a separate taxation; and

(4)  The defendant’s striking out application was not entirely unmeritorious.

10.  I will consider these matters in turn below.

Severability of the interlocutory proceedings

11.  Ms Chan submitted that:

“On the issue of severability of the costs, the Court in the present case has concluded on the final liability of the parties by refusing to strike-out the Plaintiff’s claim and entering interlocutory judgment against the Defendant. What remains outstanding is the assessment of damages.

Given that the evidence considered during the assessment of liability will likely be redeployed again for the purpose of assessment of damages, it is submitted that the trials on liability and damages are intertwined in the sense that evidence to prove both is interconnected. From a taxation point of view, both the Striking-out Summons and the Summons for Judgment are neither severable nor self-contained from the rest of the action for assessment of damages.”[1]

12.  With respect, I do not agree with Ms Chan’s submissions.

13.  As far as the Striking-out Summons was concerned, the issues were whether the Statement of Claim disclosed any reasonable cause of action and whether it was an abuse of the process of the court.  On the first matter, the court should and did only consider the cause of action pleaded in the Statement of Claim.  No evidence was considered for this purpose.  Regarding the issue on abuse of process, the defendant’s grounds focused primarily on the actions taken by the plaintiff (in terms of the commencement of different legal proceedings) after the defendant made the bail decision on 11 January 2018 (“the Bail Decision”) and the effect of the plaintiff’s legal action herein on the independence of the Judiciary.

14.  In relation to the Summons for Judgment, the arguments were made purely on procedural steps taken in this action.

15.  On the other hand, if we go through the particulars of loss and damage pleaded in the Statement of Claim, it can be seen that the focus is more on the defendant’s conduct in the making of the Bail Decision. 

16.  It is true that the plaintiff’s Affidavit filed on 28 August 2019 in opposition to the Striking-out Summons did touch on what happened at the material time from the plaintiff’s perspective, but the evidence filed was not long.  Hence, even if such evidence would be deployed again in the proceedings for assessment of damages, in my view, any duplication of costs would be minimal.

17.  I therefore hold the view that from a taxation point of view, the Summonses are, at least to a very large extent if not entirely, self-contained and severable from the rest of the action for assessment of damages.

Financial position

18.  Ms Chan discussed this factor in the following way:

“It is for the parties to adduce evidence on their financial positions in support of or opposition to a forthwith order. The Court will pay minimal weight on bare assertion as to the potential repercussions on a party’s financial position flowing from costs orders. In the present case, the Plaintiff made no submissions in this regard. She has not provided the Defendant and the Court with evidence in relation to her financial position and the effects on her cash flow should the variation application be dismissed.”[2]

19.  If the receiving party can show to the court that he will suffer cash flow problem without an order for immediate payment of costs (as in the case of Wing Fai, where the Court appreciated that to make the liquidator wait until the end of the proceedings would have a seriously negative effect on the cash flow of the winding-up and might unjustly inhibit proper determination of the substantive proceedings), then that would no doubt be a factor tilting the balance towards the making of such an order. However, it does not mean that it is a prerequisite for the receiving party to show that he would have cash flow problem without such an order. 

20.  On the other hand, it has been held by M Ng J in Seridom Servicios Integrados Idom S.A.U. v Heng Wen Trade Co., Limited & Others[2019] HKCFI 761 that:

“[…] If there were no order for immediate quantification/payment of its costs, P would be out of pocket for a substantial sum in the meantime. Even though P might be able to afford it in terms of cash flow, it was still a prejudice to P. Underlying objectives in Order 1A rule 1(c)-(d) of the RHC militated in favour of ordering immediate quantification/payment of the cost order in respect of the Summons. In my view, the discretionary considerations were substantially in favour of such an order.” (at paragraph 21)

21.  As the plaintiff has not indicated the level of legal costs incurred in relation to the Summonses, it is unknown whether “a substantial sum” (as in the case of the plaintiff in Seridom) has been spent.  However, taking into account of the fact that 7 sets of written submissions have been lodged by counsel from both sides and the volume of the exhibits placed before the court, my estimation is that the plaintiff’s costs would, at least, not be minimal.  Keeping her out of pocket for such costs would still be a prejudice to her.

Justification for separate taxation

22.  In relation to this factor, Ms Chan argued for the defendant that:

“The present case does not justify a separate taxation for the following reasons:-

(a) The amount at stake on the taxation is insufficient to justify putting the parties to the expense of having a separate taxation given that:-

(i) both the Striking-out Summons and the Summons for Judgment were dealt with by way of paper disposal without any oral hearing;

(ii) District Court rate applies; and

(iii) amongst the 916 pages of court documents used for the purpose of the hearing of the summonses, majority of the pages are materials arising out of the underlying criminal proceedings in which the Plaintiff was represented by the same legal team; and

(b) having regard to the stage of proceedings in that liability has been concluded leaving damages to be assessed, the Plaintiff would not be prejudiced for being deprived of the interlocutory costs for a substantial period pending the Court’s assessment of damages.”[3]

23.  With respect, I cannot accept Ms Chan’s arguments, for the following reasons.

24.  Even though the Summonses were dealt with by way of paper disposal, and as a result the costs of attendance at the substantive hearing for argument had been saved, it cannot be said that the costs to be recovered by the plaintiff from the defendant would be of such a small amount which renders a separate taxation unjustifiable.  It must be borne in mind that counsel from both sides had lodged 7 sets of written submissions altogether, with a total of more than 60 authorities. 

25.  Further, in support of her application to strike out the plaintiff’s claim, the defendant had filed an affidavit which exhibited, among other things, the transcripts of previous hearings held in the Magistrates’ Court on 12, 15 and 16 April 2019 which were of no less than 350 pages in total.  It would take time for the plaintiff’s legal team (especially the plaintiff’s counsel who did not represent the plaintiff in those hearings) to read these documents, even if they were not perused in detail. 

26.  Although the District Court rates are applicable herein, this does not mean that the amount of costs to be recovered would be small, particularly after the increment of such rates from 1 January 2018.

27.  In the event this court decides to conduct summary assessment of the plaintiff’s costs of the Summonses (which is indeed the case here (see further below)), the defendant’s argument in this regard would be further weakened.

28.  Even though interlocutory judgment has been entered and what remains to be resolved is the assessment of damages, I would not assume that the action could be disposed of within a short period of time, as there are always uncertainties in litigation.  The time required would also be affected by the state of the court’s diary at the material time.

Merits of the defendant’s striking out application

29.  Ms Chan submitted that:

“Unsuccessful application is not equivalent to the application being totally without merit as the Plaintiff alleged. It is worth emphasizing that the Judge made no ruling that the Striking-out Summons is entirely unmeritorious. Moreover, given that interlocutory judgment was entered against the Defendant for default of pleadings, no finding was made by the Judge in respect of the merits of the Plaintiff’s claim.”[4]

30.  While it is recognised that one of the objectives of the Civil Justice Reform in encouraging the court to order immediate payment of costs of interlocutory proceedings (and if possible by way of summary assessment of costs) is to discourage unnecessary and disproportionate interlocutory applications, I do not think there is any rule to the effect that the court should only make an order for immediate payment when it is satisfied that the arguments in support or in resistance of the interlocutory applications (as the case may be) are entirely unmeritorious.

31.  If one refers to the discussion under Proposal 32 in the Final Report of the Chief Justice’s Working Party on Civil Justice Reform (which was also referred to by Lam J in paragraph 9 of Midland Business Management Ltd & Another (supra)[5]), the recommendation made at the end of it (Recommendation 88) reads:

“The court should, whenever appropriate (whether as a response to an unwarranted application or unwarranted resistance to an application, with a view to saving costs or otherwise), make a summary assessment of costs when disposing of interlocutory applications” (emphasis added)

32.  The words “or otherwise” show that the court’s discretion is unfettered and can be exercised in circumstances not limited to the case where an unwarranted application is made or when the resistance to an application is unwarranted.

33.  Indeed, the case of Wing Fai cited above has provided a clear example.  That was a case argued in the Court of Final Appeal, pursuant to leave to appeal granted by the Appeal Committee to the respondents therein.  I do not think the Appeal Committee would have granted such leave if the respondents’ proposed appeal was totally unmeritorious.  Yet, the Court of Final Appeal, having dismissed the respondents’ appeal, considered it appropriate to make an order for immediate payment against them.

Other factors

34.  Ms Chan also reminded the court to factor in any possible unfairness or prejudice which the party against whom an order for immediate payment of costs is sought may suffer in consequence of such an order.  That is indeed a reminder which was given by the Court of Final Appeal in Wing Fai.  However, she has not further explained why it is said to be unfair if such an order is made, nor did she particularise how the defendant would be prejudiced by such an order. 

35.  On the other hand, I think it is unfair to the plaintiff if she is unable to recover her legal costs from the defendant until the conclusion of the whole action.  There is simply no reason why she has to wait.  The defendant should be ordered to face the costs consequence right away. 

CONCLUSION ON IMMEDIATE PAYMENT OF COSTS

36.  Having considered all the relevant matters in the present case, I am of the view that it is appropriate to order that the plaintiff’s costs of the Summonses should be paid forthwith by the defendant.

SUMMARY ASSESSMENT VS TAXATION

37.  Lam J explained in Midland Business Management Ltd & Another (supra) that once a decision is made that there should be immediate payment for the costs of an interlocutory proceeding, the court has 3 options:

“18. Once I reach this conclusion, there are three options. First, I can order immediate taxation of the Defendant’s costs of the summons. Second, I can do a summary assessment and order payment of such costs as assessed in lieu of taxation under Order 62 Rule 9A(a). Third, I can make an order under Order 62 Rule 9A(b) for provisional summary assessment. If the second or third option is adopted, one needs not be concerned about the proportionality of the costs of a separate taxation hearing as compared with the costs of the summons. Otherwise, this issue has to be addressed […]”

38.  These options are also referred to in PD 14.3. Paragraph 6 thereof provided that:

“Upon the disposal of any application, cause or matter, the Court may make one of the following orders in respect of the costs of and incidental thereto:

(1) summary assessment of such costs, in which event Part C(1) below applies;

(2) provisional summary assessment of such costs; or

(3) taxation of such costs, in which event Part C(2) below applies.

The Court will give preference to the first two options where an interlocutory application is concerned, unless there is good reason not to do so, e.g. where the paying party shows substantial grounds for disputing the sum claimed for costs that cannot be dealt with summarily.”

(emphasis added)

39.  Mr Leung for the plaintiff preferred to have the costs taxed rather than summarily assessed because:

“(1) there is a large volume of documents for the hearing; (2) there is a real chance that the parties would agree on the quantum upon negotiations (but it will take some time for doing so), such that the Court need not be troubled; (3) even if the parties could not reach agreement on quantum, taking into the amount of work done (hence the costs), taxation is not disproportionate.”[6]

40.  The defendant did not express any view on whether there should be taxation or summary assessment.

41.  Bearing in mind the direction given by virtue of paragraph 6 of PD 14.3 that summary assessment of costs should be preferred over taxation unless there is good reason not to do so, I hold the view that the plaintiff’s costs of the Summonses should be summarily assessed.

42.  In reply to Mr Leung’s point that there is a large volume of documents involved, my view is that that may well be a reason in support of summary assessment by this court, because, having considered all the relevant materials placed before this court by the parties and made the Decision, I am in a better position to assess what the necessary or proper costs should be as far as those documents are concerned.

43.  Concerning Mr Leung’s anticipation that the issue on quantification of costs may well be resolved between the parties themselves without troubling the court, I should say that the court would always welcome settlement between the parties such that judicial resources may be spent on other cases.  Given Mr Leung’s optimism (as to which Ms Chan for the defendant did not query), I would allow a longer period than usual for the plaintiff to lodge her statement of costs for the purpose of summary assessment, so that parties would be able to make use of the time given to negotiate on the matter first.  In the event they can agree on the quantum of costs, they should inform the court immediately.

ORDER

44.  By reasons of the aforesaid, I make the following orders:

(1)  Paragraph 3(i) of the order made on 1 November 2021 be varied to:

“The defendant shall bear the plaintiff’s costs of the Striking-out Summons and the Summons for Judgment, (including all costs reserved) with certificate for counsel.  Such costs shall be summarily assessed in lieu of taxation pursuant to Order 62 rule 9A(1)(a) of the Rules of the District Court (“RDC”) if not agreed, and payable forthwith.”

(2)  For the purpose of summary assessment of the plaintiff’s costs of the Summonses:

(i)  The plaintiff shall lodge and serve her statement of costs on or before 31 March 2022;

(ii)  The defendant shall lodge and serve her statement of objection on or before 8 April 2022. 

(3)  Summary assessment of the costs of the Summonses will be conducted on paper (no matter whether any statement of objection is lodged by the defendant within time) thereafter.  The costs assessed shall be payable by the defendant within 14 days after assessment.

COSTS

45.  I make a costs order nisi that the defendant shall bear the plaintiff’s costs of the variation application, with certificate for counsel.  Such costs shall be summarily assessed in lieu of taxation pursuant to Order 62 rule 9A(1)(a) of the RDC together with the costs of the Summonses if not agreed, and payable forthwith.    Directions on the lodging and service of statement of costs and statement of objection given in the preceding paragraph shall be applicable to the costs of the variation application.  

46.  If any party wishes to vary the costs order nisi:

(1)  Such a party shall lodge and serve written submissions within 14 days hereof;

(2)  The other party shall lodge and serve written submissions within 14 days thereafter;

(3)  The applying party shall lodge and serve written submissions in reply within 7 days thereafter;

(4)  The application to vary shall then be disposed of on paper.

47.  The above order nisi shall become absolute in the absence of application to vary within the first 14-day period mentioned above.

( H. Au-Yeung ) District Judge

Mr Kelvin Leung, instructed by How & Co., for the plaintiff

Ms Esther Chan, Government Counsel, Department of Justice, for the defendant

DCCJ 1719/2019

[2021] HKDC 1362

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1719 OF 2019

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BETWEEN

	THAPA KAMALA	Plaintiff
and
	HO LAI MING (Deputy Special Magistrate at Eastern Magistrates’ Courts)	Defendant

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Coram: His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions: 21 & 31 May 2021, 7 & 15 June 2021, 28 July 2021, 16 August 2021 & 1 September 2021

Date of Decision: 1 November 2021

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DECISION

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THE APPLICATIONS

1.  There are two applications before the court:

(1) The defendant’s summons filed on 19 July 2019 to strike out the Statement of Claim indorsed on the Writ of Summons issued on 4 April 2019 (“the Striking-out Summons”); and

(2) The plaintiff’s summons filed on 23 July 2019 for interlocutory judgment (“the Summons for Judgment”).

2.  By consent, these applications are dealt with by the court on paper.

BACKGROUND

3.  The whole matter stemmed from a summons (ESS 39884/2016) under which information was laid against the plaintiff for being a pedestrian who used the road negligently and endangered the safety of her own, contrary to section 48 of the Road Traffic Ordinance (Cap.374) (“the Jaywalking Summons”).

4.  The trial of the Jaywalking Summons commenced on 10 January 2018 before the defendant (who was sitting as a Special Magistrate at the material time) at the Eastern Magistrates’ Courts.

5.  The second day of the said trial took place on 11 January 2018. As it could not be finished in the morning, it was adjourned to 2:30pm on the same day.

6.  When the trial resumed at 2:31pm, the plaintiff was absent, but her counsel was in court. The plaintiff entered the courtroom shortly thereafter. The plaintiff explained that she was late to the hearing because she was in the restroom.

7.  When the case was going to be adjourned further at the end of the hearing on 11 January 2018, the defendant imposed a condition of cash bail for $100 on the plaintiff so as to compel her in attending the court hearing punctually (“the Bail Decision”).

8.  The plaintiff took the view that the Bail Decision was unlawful. She therefore filed a Notice of Application for Leave to Apply for Judicial Review on 26 January 2018 (HCAL 125/2018) (“the Judicial Review Proceedings”). The application for leave was initially refused by Campbell-Moffat J. The plaintiff then appealed against such a decision. The Court of Appeal (Yuen JA and Barma JA) subsequently allowed the appeal on 22 October 2018 (CACV 118/2018) and granted leave for the plaintiff to bring the intended judicial review as they took the view that it is “at least reasonably arguable” that:

(1) the defendant had no power to impose the cash bail of $100 because of section 18 of the Magistrates Ordinance (Cap.227) and of the fact that the plaintiff was not under detention at any time prior to the imposition of bail requirement; and

(2) the effect of the cash bail was to have the plaintiff arrested.

9.  Pursuant to the leave granted by the Court of Appeal, the plaintiff commenced judicial review proceedings by filing an Originating Summons on 23 October 2018.

10.  Upon the joint application of the plaintiff and the Secretary for Justice by way of a Statement and draft Consent Order filed pursuant to paragraph 23 of Practice Direction SL3 on 28 March 2019, the Bail Decision was brought up and quashed by Chow J (as his Lordship then was) on 4 April 2019.

11.  On the same day, the plaintiff started this action.

THE STRIKING-OUT SUMMONS

12.  The defendant applied to strike out the plaintiff’s Statement of Claim on the following grounds:

(1) It discloses no reasonable cause of action; and

(2) It is an abuse of the process of the court.

13.  I will deal with these grounds in turn below.

No reasonable cause of action

14.  The applicable legal principles are trite. They have been summarised by Mr Recorder Manzoni SC in Polyline Development Limited (寶富來發展有限公司) (in liquidation) v Ching Lin Chuen (程練傳) & Others[2021] HKCFI 483 as follows:

“10. As a matter of general principle, it is trite that:

(1) a strikeout application will only be successful in a plain and obvious case. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.

(2) However, plain is not the same as simple, and obvious is not the same as short. If, on a careful reading of the statement of claim, however complicated, it can be seen that there is no cause of action or the claim will obviously not succeed, then it will be struck out despite the apparent complexity.

(3) There should be no trial upon affidavit and disputed facts should be taken in favour of the party sought to be struck out. Where the legal viability of a cause of action is sensitive to the facts, an order to strikeout should not be made. However, the court should remain vigilant to ensure that its processes are not abused by the prosecution of hopeless claims.

(4) The court should not decide difficult points of law in striking out proceedings.

(5) It is for the party seeking to strikeout the pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. However, in the context of limitation, once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied upon accrued within the limitation period, even in a strike out application.

11. Insofar as the application is premised upon the proposition that there is no reasonable cause of action, I must proceed on the basis that the facts alleged in the statement of claim will be established. No evidence is admissible in relation to this limb of the applications and I must address the matter simply on the basis of what is pleaded. Where a pleading is defective only in not containing particulars to which the other side is entitled the correct approach is to order particulars rather than strikeout the pleading.”

15.  In relation to paragraph 10(4) quoted above, Ma J (as his Lordship then was) had given his guidance in paragraph 14(3) of his Judgment in Chuang Yue Chien Eugene v Ho Yau Kwong Kevin [2002] 4 HKC 245 as follows:

“Questions of law may be dealt with in a strike out application provided that the underlying facts are certain. It is sometimes said that the court may decline to determine difficult questions of law in a strike out application: see Hong Kong Civil Procedure 2002, Vol.1, at paragraph 18/19/4. This would therefore explain why applications such as the present one are sometimes made in the alternative under Order 14A or even Order 33, rule 3: see Hong Kong Civil Procedure 2002, Vol.1, at paragraphs 8/19/3 (at paragraph 5) and 18/19/4. In my view, questions of law can be determined in strike out applications provided that they are crucial and the court has all the relevant facts before it and that these facts are certain. There is, on the other hand, little point in dealing with any points of law, whether in strike out applications or applications under Order 14A or under Order 33, rule 3, if the relevant facts are either not before the court or are in dispute.”

16.  The present action was brought pursuant to sections 125 and/or 126 of the Magistrates’ Ordinance (Cap.227) (“the MO”). They provide that:

s.125 Action against magistrate for act within his jurisdiction

In every action brought against any magistrate for any act done by him in the execution of his duty as such magistrate, with respect to any matter within his jurisdiction as such magistrate, it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause; and if at the trial of any such action the plaintiff fails to prove such allegation, he shall be nonsuit or the judgment or verdict, as the case may be, shall be for the defendant.

s.126 Action for act done without or in excess of jurisdiction

(1) For any act done by a magistrate in a matter over which by law he has no jurisdiction or in which he has exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction or order made or warrant issued by the magistrate in any such matter, may maintain an action against the magistrate in the same form and in the same case as he might have done before the commencement of this Ordinance, without making any allegation in his pleadings that the act complained of was done maliciously and without reasonable and probable cause:

Provided, nevertheless, that no such action shall be brought for anything done under such conviction or order until after such conviction or order has been quashed, either on appeal to the Court of Appeal or on application to the court, nor shall any such action be brought for anything done under any such warrant which has been issued by the magistrate to procure the appearance of such party, and which has been followed by a conviction or order in the same matter, until after such conviction or order has been so quashed as aforesaid; or if such last-mentioned warrant has not been followed by any such conviction or order, or if it is a warrant on an information for an alleged indictable offence, nevertheless, if a summons was issued previously to the warrant, and such summons was served on such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of the summons, in such case no such action shall be maintained against the magistrate for anything done under warrant.

(2) In any action under this section it shall be a good defence that the act complained of was not done maliciously and without reasonable and probable cause, and the onus of proving the same shall rest with the magistrate.

(3) Save under and in accordance with the provisions of this section no action shall lie in any civil court against a magistrate for any act done in a matter over which by law he has no jurisdiction or in which he has exceeded his jurisdiction.

17.  Generally speaking, the effect of sections 125 and 126 of the MO is that:

(1) Where the learned Magistrate has acted within his or her jurisdiction, the claimant’s claim would be dismissed unless the claimant can prove that the learned Magistrate’s act was done maliciously and without reasonable and probable cause;

(2) Where the learned Magistrate has acted without jurisdiction or has acted in excess of his/her jurisdiction, the claimant may sue the Magistrate without pleading that the act complained of was done maliciously and without reasonable and probable cause. The onus for proving that the act was not done maliciously and without reasonable and probable cause shall be shifted to the Magistrate, and the proof of which would provide a complete defence.

18.  In a gist, Mr Wong for the defendant argued that:

(1) It was within the defendant’s jurisdiction to make the Bail Decision, and the plaintiff is unable to prove malice or without reasonable cause;

(2) Even if the defendant did not actually have jurisdiction to make the Bail Decision, “the defendant needs only to prove the absence of malice as her complete defence (s.126). The action should therefore be struck out for having no reasonable cause”[1].

19.  This court had been referred by counsel to a number of statutory provisions and case authorities on the question of whether the defendant had jurisdiction to impose cash bail on the plaintiff. Without disrespect to counsel, I am of the view that it is unnecessary to make a decision on such a question herein because it is not a crucial question for the purpose of this striking out application:

(1) If the defendant did not actually have jurisdiction to make the Bail Decision, I cannot see how it can possibly be argued that the plaintiff has no reasonable cause of action. Mr Wong’s argument that the defendant would have a complete defence is totally misconceived. It is a matter for the trial.

(2) If it was within the defendant’s jurisdiction to make the Bail Decision, then it is undisputed that the plaintiff has to plead in her Statement of Claim that the learned Magistrate’s act was done maliciously and without reasonable and probable cause. The plaintiff had done that with the support of a number of particulars. It is a matter for the trial to decide whether such an allegation can be established.

20.  Mr Wong argued that “it is difficult to see how by ordering bail on condition of HK$100, the Defendant could ever have been said to have breached the Judicial Oath and therefore made the order in malice”[2]. In my view, this argument cannot assist the defendant. If the fact that the magistrate concerned has taken the Judicial Oath would render it impossible to establish malice against such a magistrate, then sections 125 and 126 of the MO would be made nugatory because it will never be possible to succeed in any action brought under those provisions. That cannot be the case.

21.  Mr Wong further submitted that according to the plaintiff’s pleaded case, it was only around 11 days after the making of the Bail Decision that the plaintiff’s counsel handed up authorities on Magistrates’ jurisdiction to impose bail condition, and therefore the defendant “could not have had any inkling of knowledge or doubt that the decision may have been incorrect until after the decision”[3]. That may be so. However, taking the defendant’s case to the highest, she only has a strong defence, but I cannot agree with Mr Wong’s submission that “the defendant will inevitably succeed on the defence of absence of malice”[4].

22.  I therefore come to the view that this ground must fail.

23.  At the end of the argument in support of this ground, the defendant’s counsel had made certain observations on the matters pleaded in the Statement of Claim. It seems he was suggesting that the Statement of Claim was lacking of particulars. She also appeared to be arguing that certain damages are not recoverable. She invited the court to order the plaintiff in providing further and better particulars if the Statement of Claim is not struck out.

24.  I do not think it is appropriate for me to make any order as proposed even if the case is not struck out, as the defendant has not framed her request properly for the court’s consideration. It is up to the defendant to make another application pursuant to Order 18 rule 12 of the Rules of the District Court if required.

Abuse of process

25.  The defendant has made the following submissions when arguing that the Statement of Claim should be struck out by reason of abuse of process of the court:

(1) The threat of litigation against Judges would undermine judicial independence (“the Judicial Independence/Immunity Ground”);

(2) The plaintiff had chosen to sue the defendant personally rather than challenging the Bail Decision by other means (“the Personal Action Ground”)

(3) The plaintiff has sought to relitigate the same issue by commencing the action herein (“the Res Judicata Ground”);

(4) By the commencement of this action, the plaintiff has sought to impose a threat on the defendant so that she would recuse herself as the presiding judicial officer at the trial of the Jaywalking Summons (“the Recusal Ground”).

The Judicial Independence/Immunity Ground

26.  In his submissions, Mr Wong had emphasized the importance of judicial immunity and drawn the court’s attention to Article 85 of the Basic Law which provides that:

“The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”

27.  Mr Wong has also referred this court to the case of Choy Bing Wing v Chief Justice and Kelvin Browne (A Magistrate) (HCA 125/2005, unreported, 10 August 2005) and Ma Kwai Chun v Leong Siu Chung & Another (CACV 227/2002, unreported, 5 August 2002).

28.  In Choy Bing Wing (supra), Suffiad J held that:

“Secondly, even if there was some defect in the Warrant or in the process of its issuance, Article 85 of the Basic Law provides absolute immunity in favour of the 2^nd defendant as a magistrate and the action against him by the plaintiff cannot be maintained but must be struck out.” (at paragraph 24)

29.  In Ma Kwai Chun (supra), the plaintiff therein sued Leong CJHC and Master Lung (as he then was). The action was struck out by Registrar C Chan. The plaintiff’s appeal was dismissed by Yeung J (as his Lordship then was). Upon the plaintiff’s further appeal to the Court of Appeal, Woo JA (as his Lordship then was) quoted what Yeung J stated as follows[5]:

“…Needless to say, a judge must deal with a case without fear or favour. At the same time, a judge is protected by the law so that, in the course of dealing with a case, he is immune from any consequence which is prejudicial to him. Without such protection, a judge can hardly deal with a case without fear or favour. And it is for this reason that article 85 of the Basic Law expressly provides that a judge is free from any interference in hearing and determining a case and is immune from legal action in performing his judicial functions. This protection must be an absolute one, otherwise it will be extremely difficult for a judge to perform his functions.”

30.  Woo JA continued in paragraph 10 of his Judgment:

“[…] Article 85 of the Basic Law provides an absolute protection for acts done by judicial officers in the administration of justice, in order to ensure that these officers deal with cases without bias, favour or fear and to effectively prevent litigants from commencing proceedings against these officers personally, such as what Madam Ma is seeking to do now.”

31.  Despite what were said in these authorities, Mr Wong submitted that the defendant is not arguing that she enjoys absolute immunity from suit. He cited the case Park Young Sook v Sharon Melloy (HCA 763/2010, unreported, 30 June 2010), in which it was held by To J that Article 85 of the Basic Law is “amplified by the detailed provisions in section 71 of the District Court Ordinance”[6] (“DCO”) which provides that:

“(1) No action shall be brought against a judge for any act done by him in the execution of his duty until the act done by him has been quashed on appeal to the Court of Appeal or by the Court.

(2) No such action shall be brought in respect of any matter within the jurisdiction of the judge unless it is expressly alleged that such act was done maliciously and without reasonable and probable cause and the burden of proof that the act was so done shall rest with the plaintiff in such action.

(3) In any such action in respect of any matter over which by law the judge had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment, it shall be a good defence that the act complained of was not done maliciously and without reasonable or probable cause and the burden of proof that the act was not so done shall rest with the judge.

(4) Save under and in accordance with this section no action shall lie in any civil court against a judge for any act done in a matter over which by law he had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment.”

32.  It can be seen that the effect of section 71 of the DCO is more or less the same as sections 125 and 126 of the MO. Therefore, the reasoning of To J should be equally applicable to sections 125 and 126 of the MO.

33.  On my part, I have reservation on the view that Article 85 of the Basic Law is amplified by section 71 of the DCO or sections 125 and 126 of the MO, because Article 85 is unqualified. As Woo JA put it, “Article 85 of the Basic Law provides an absolute protection for acts done by judicial officers in the administration of justice”. It does not distinguish between a decision which is within the Judge/Judicial Officer’s jurisdiction and a decision which the Judge/Judicial Officer has no jurisdiction to make or is made in excess of his/her jurisdiction. It also does not provide that an action may be maintained against a Judge or Judicial Officer so long as there is malice on his/her part. The only condition for such a protection is that the Judge or Judicial Officer is performing his/her judicial functions. Hence, I am of the view that, on the face of it, there is inconsistency between Article 85 and section 71 of the DCO.

34.  Because of the aforesaid reservation, I have sought parties’ further assistance on the question of constitutionality of sections 125 and 126 of the MO. In reply, both of them agreed that there is no inconsistency as such. Mr Wong further emphasized that the defendant has never argued that the aforesaid statutory provisions are unconstitutional.

35.  Because of such a stance, I would proceed herein on the assumption that the aforesaid provisions are constitutional, and that they have amplified Article 85 of the Basic Law as explained in Park Young Sook.

36.  In my view, once we are going along that route, we would have to consider the effect and operation of sections 125 and 126 of the MO. If those provisions allow an action to be brought against a Magistrate, then I think the defendant’s argument on “judicial independence” cannot stand. As I have held above that the plaintiff has a reasonable cause of action pursuant to the said provisions, I am not prepared to strike the plaintiff’s claim out on the ground that this action would threaten the independence of the Judiciary.

The Personal Action Ground

37.  The defendant alleged that while the plaintiff has had other avenues to challenge the Bail Decision, she has chosen to attack the defendant with this action. She submitted that this is an inappropriate forum, and that the plaintiff should not have put the defendant “on trial by impugning her character”[7].

38.  With respect, this argument is bound to fail. As discussed, sections 125 and 126 of the MO expressly permit actions to be brought against magistrates. That being the case, subject to my further discussion on res judicata and judicial immunity below, I cannot see how it can be said that the plaintiff’s election to go after the defendant by virtue of a personal action is an abuse of process of the court.

The Res Judicata Ground

39.  Under this ground, the defendant argued that the plaintiff should have sought damages in the Judicial Review Proceedings.

40.  I have already set out some brief background of the said Judicial Review Proceedings at the beginning of this Decision and I shall not repeat those matters here. However, for the purpose of dealing with the Res Judicata Ground, I need to supplement the above background by the followings:

(1) When the plaintiff herein first applied for leave to apply for judicial review, the defendant herein was named as a Putative Respondent therein;

(2) On 15 June 2018, the Department of Justice wrote to the Registrar of Civil Appeals and informed him that the defendant herein would take a neutral stance in the plaintiff’s pending appeal to the Court of Appeal against the Court of First Instance’s refusal to grant leave to apply for judicial review (CACV 118/2018). In the same letter, the Department of Justice drew the court’s attention to paragraph 4 of Practice Direction SL3, and pointed out that “the proper respondent to an application for judicial review, when the Court’s supervisory jurisdiction over criminal proceedings in an inferior Court is invoked, is the other party to the proceedings in the inferior Court, and not the inferior Court itself”;

(3) Referring to the said letter of the Department of Justice, the Registrar of Civil Appeals, by directions dated 27 June 2018, drew the plaintiff’s attention to the said paragraph 4 of Practice Direction SL3, and urged the plaintiff “to take whatever appropriate action in rectifying the matter as soon as possible, if so advised”;

(4) As a result, the plaintiff herein filed a summons on 6 July 2018 by which she sought leave to amend the name of the Putative Respondent in CACV 118/2018 to “Secretary for Justice”;

(5) By two letters dated 6 August 2018 and 7 August 2018 respectively, the Department of Justice informed the court that both the defendant herein and the Secretary for Justice had no objection to the substitution of Putative Respondent in the Judicial Review Proceedings;

(6) On the basis of such consent, Yuen JA made an order in terms of the said summons.

41.  With the above background, I agree with the plaintiff that since the defendant herein was not a proper party to be named as Putative Respondent in the Judicial Review Proceedings (such that the defendant was substituted by the Secretary for Justice), the plaintiff could not have claimed damages against the defendant personally therein. As a result, there is no abuse of process on the part of the plaintiff in instituting another action against the defendant personally herein.

42.  Furthermore, it is stipulated in section 126 of the MO that in a case where the magistrate had no jurisdiction to do an act or exceeded his jurisdiction while doing the act, no action shall be brought against such a magistrate for such act until after the order concerned had been quashed. In other words, the plaintiff could not have included any claim for damages in the Judicial Review Proceedings even if the defendant herein was a proper party thereto.

43.  Mr Wong has drawn this court’s attention to the case of Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 in an attempt to demonstrate that where there is a mix of public law issues and a civil claim, a judicial review can be converted into a writ action for the purpose of assessing damages. I agree with Mr Leung’s submission that this authority does not assist the defendant because while the Commissioner of Customs and Excise was a proper party to be sued in both the judicial review case and the civil action in the Keen Lloyd case, as aforesaid, it was agreed by the defendant herein that she was not a proper party in the Judicial Review Proceedings and as a result she was substituted by the Secretary for Justice. Therefore, the procedure adopted in Keen Lloyd could not be followed in the present scenario.

44.  This ground therefore fails.

The Recusal Ground

45.  The defendant further argued that the plaintiff’s motive of commencing this action was to provide a ground in support of the plaintiff’s application for the defendant to recuse herself from the trial of the Jaywalking Summons. The plaintiff had indeed made two such applications. It was said that when the first recusal application was made on 22 January 2018, the plaintiff threatened that she would start a civil action against the defendant, and that before the second recusal application was made on 12 April 2019, the plaintiff “materialized” the threat by actually commencing this action on 4 April 2019. It was therefore submitted that this action was only made use of to apply pressure on the defendant in recusing herself.

46.  It is trite that the court indeed has jurisdiction to strike out a claim if it is satisfied that the claim is commenced out of improper motive. In Yifung Properties Ltd & Others v Manchester Securities Corp & Others (HCA 1341/2014 and HCA 1359/2014, unreported, 19 October 2015), Au-Yeung J stated that:

“12. A proceeding is ‘frivolous’ when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed: Hong Kong Civil Procedure2015, §18/19/8. Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process: see ET Marler Ltd v Robertson [1974] ICR 72 at 76D-E. The court should see what the party in question knew or ought to have known if he had gone about the matter seriously: Cartiers Superfoods Ltd v Laws [1978] IRLR 315 at 317, §18.

13. A proceeding is ‘vexatious’ when it is oppressive and/or lacks bona fides: Hong Kong Civil Procedure 2015, §18/19/8. Vexatiousness implies the doing of something over and above that which is necessary for the conduct of the litigation, and suggests the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive: Cartiers Superfoods, §16.

14. To decide that the litigant has been frivolous or vexatious and thus abused the process of the court is a serious finding to make, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised: ET Marler Ltd v Robertson [1974] ICR 72 at 76G-H.”

47.  Be that as it may, I am afraid I cannot accept the defendant’s submissions. First of all, as pointed out by Mr Leung for the plaintiff, it is factually incorrect for Mr Wong to submit that “the second recusal application was made wholly on the basis that the Special Magistrate had become a defendant”[8]. Altogether 10 grounds had been put forward in support of the application.

48.  Further, I am mindful that it was indeed the plaintiff’s right to make an application for recusal as soon as she took the view that there was any valid ground in support. I also notice that if the plaintiff was minded to sue the defendant pursuant to section 126 of the MO, there is a limitation period of 6 months as provided by section 131 of the MO. Therefore, the plaintiff cannot be blamed for taking prompt actions on both fronts. I do not think I can draw an inference that the plaintiff had no genuine intention in pursuing a civil action against the defendant and that her only motive was to create a ground in support of her recusal application.

49.  I should also add that my conclusion above is not affected by the fact that the plaintiff’s counsel had referred expressly to this action when he made the second application for recusal on 12 April 2019. By the time of the said application, this action had been commenced, and it was a fact that the defendant was made a party to this action. In my view, it is natural for the plaintiff’s counsel to refer to such a fact in support of the recusal application.

50.  This ground is therefore rejected.

Conclusion

51.  For the above reasons, the defendant’s Striking-out Summons should be dismissed.

THE SUMMONS FOR JUDGMENT

52.  The relevant background leading to the taking out of the Summons for Judgment is as follows:

4 April 2019		Writ of Summons (with the Statement of Claim endorsed)
23 April 2019		Acknowledgement of service of the Writ of Summons
22 May 2019		By consent, the time for the defendant to file her Defence was extended to 17 June 2019
20 June 2019		By consent, it was ordered that unless the Defendant filed her Defence by 4pm on 22 July 2019, the defendant shall be debarred from doing so, and the plaintiff would be at liberty to apply for default judgment (“the Unless Order”)
19 July 2019		The defendant filed the Striking-out Summons
23 July 2019		The plaintiff filed the Summons for Judgment, and applied for interlocutory judgment with damages to be assessed

53.  The plaintiff’s argument made in support of the Summons for Judgment may be summarised as follows:

(1) The defendant had breached the Unless Order;

(2) The defendant has not made any proper application for relief from sanction pursuant to Order 2 rule 4 of the RDC;

(3) The taking out of the Striking-out Summons should not be regarded as an application for relief from sanction.

54.  In opposition to the Summons for Judgment, Mr Wong for the defendant argued that:

(1) Prior to the deadline set by the Unless Order, the defendant had indicated by virtue of her application for striking out that the plaintiff’s claim herein disclosed no reasonable cause of action, is frivolous and vexatious and is otherwise an abuse of the process of the court;

(2) Given such a stance, the filing of a Defence would undermine the defendant’s position and would have allowed the plaintiff to achieve her objective in threatening the defendant;

(3) When the court considers whether it would exercise its discretion in entering judgment, it should consider the strength of the claim which is challenged by the virtue of the Striking-out Summons;

(4) There was no intentional and contumelious conduct on the part of the defendant. She only “took a principled approach to protect the integrity of an independent judiciary”[9].

55.  With greatest respect to Mr Wong, it is not up to the defendant or her legal advisors to decide whether the Unless Order should be complied with (unless the defendant has decided not to contest this action). If for any reason they considered it inappropriate to file a Defence before the result of the Striking-out Summons is known, the defendant should have sought the consent of the plaintiff and applied to the court for the staying of the Unless Oder pending the determination of the Striking-out Summons. They only have themselves to blame if they fail to get any court order and protect the defendant’s position.

56.  Furthermore, given this court’s refusal of the defendant’s grounds raised in support of the Striking-out Summons, it is no longer open to the defendant to argue that the plaintiff’s action herein is liable to be struck out.

57.  Moreover, it seems from Mr Wong’s explanation (that the defendant had taken a “principled approach”) that it was a deliberate decision on the part of the defendant (and her legal team) not to file any Defence. That being the case, the defendant’s breach of the Unless Order cannot be anything other than intentional and contumelious.

58.  Lastly, Mr Wong argued that:

“As also pointed out in the Original Submissions, the Statement of Claim is not capable of bearing a judgment in the plaintiff’s favour. At most, the failure to strike out the plaintiff’s claim should result in proceeding to trial following further case management and not judgment.”[10]

59.  In the light of the sanction imposed by the Unless Order, the defendant shall not be able to file any Defence in the present action. Pursuant to Order 19 rule 3 of the RDC, where the plaintiff’s claim against a defendant is for unliquidated damages, the plaintiff may enter interlocutory judgment against the defendant for damages to be assessed if the time for the filing of Defence has expired. It is indeed a category of application which this court has to handle day-in-day-out. All the court has to be satisfied when faced with such kind of application is that, assuming the plaintiff is able to prove all the pleaded facts, he would have a valid claim against the defendant. Hence, with respect, I do not understand why the plaintiff should be required to prove her case at a trial as proposed by Mr Wong.

60.  As aforesaid, the defendant has never made any application for relief from sanction. Neither did Mr Wong for the defendant indicate that such an application would be made. Indeed, the Summons for Judgment was filed by the plaintiff back in July 2019. Yet, the defendant had not seen fit to file any summons under Order 2 rule 4 of the RDC in the last 2 years asking for relief from the sanction imposed by the Unless Order.

61.  I have considered whether I should follow the approach of Mr Recorder Stewart Wong SC in Lau Ping v Lim Gary Radford[2021] HKCFI 1137 in which his Lordship accepted an undertaking given on behalf of the defendant to issue a summons within 7 days to apply for relief from sanction formally rather than entering an interlocutory judgment right away. I am of the view that I should not give any further chance for the defendant to make such an application because:

(1) The defendant has not even asked for such a chance;

(2) In Lau Ping, the learned Recorder took the view that it was at least plausible for relief from sanction for breach of the unless order therein to be granted to the defendant. However, I do not think we have the same situation here. As I said, I am of the view that the defendant’s breach of the Unless Order herein was intentional and contumelious;

(3) Further, as aforesaid, the defendant did not see fit to make such an application in the last 2 years.

62.  Having taken the above matters into account, I am of the view that I should accede to the request of the plaintiff in granting her judgment in terms of the Summons for Judgment.

ORDER

63.  By reasons of the aforesaid, I order that:

(1) The Striking-out Summons be dismissed;

(2) Interlocutory judgment be entered against the defendant with damages to be assessed.

COSTS

64.  I make a costs order nisi that:

(1) The defendant shall bear the plaintiff’s costs of the Striking-out Summons and the Summons for Judgment, with certificate for counsel, to be taxed if not agreed;

(2) Costs on liability of this action up to the date of this Decision be to the plaintiff, to be taxed if not agreed.

65.  The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof.

	( H. Au-Yeung )
	District Judge

Mr Kelvin Leung, instructed by How & Co., for the plaintiff

Mr Albert N B Wong, instructed by Department of Justice, for the defendant