Case Detail

HCMP 79/2020

[2021] HKCFI 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

________________________

BETWEEN

	HUI CHI FUNG	Plaintiff
	and
	COMMISSIONER OF POLICE	Defendant

________________________

Before: Hon Wilson Chan J in Chambers

Date of Hearing: 13 April 2021

Date of Decision: 13 April 2021

________________________

D E C I S I O N

________________________

1. In these proceedings, the plaintiff issued an Originating Summons dated 17 January 2020 under section 41 of the High Court Ordinance, Cap 4 and Order 24, rule 7A of the Rules of the High Court, Cap 4A.

2. After a directions hearing on 9 June 2020, the defendant filed his affirmation in opposition on 14 July 2020, and the plaintiff filed his affidavit in reply on 29 July 2020.

3. On 1 February 2021, the plaintiff filed a Notice of Discontinuance to wholly discontinue the proceedings herein.

4. As late as 7 April 2021 (less than one week before the hearing today), the plaintiff’s new solicitors, Messrs Chan & Associates, wrote to the Department of Justice acting for the defendant proposing directions for vacating the substantive hearing and the timetable for determination of the costs matter by paper disposal. The Department of Justice replied with a revised timetable for paper disposal of costs matters on 8 April 2021.

5. In the late afternoon of 8 April 2021, the plaintiff’s solicitors suddenly informed the Department of Justice that the plaintiff would like to proceed with this case after all and would apply to withdraw the Notice of Discontinuance.

6. On 12 April 2021 (ie yesterday), the plaintiff took out the Withdrawal Summons supported by the affidavit of Chan Wan-ha Isabella, the plaintiff’s solicitor, seeking leave to withdraw his Notice of Discontinuance and to proceed with these proceedings.

7. Having heard submissions from the parties, I agree with the defendant that the Withdrawal Summons should be dismissed.

8. First, by filing and serving the Notice of Discontinuance in February 2021, the plaintiff has evinced his unequivocal position that he had no intention to pursue the present proceedings. The fact that leave was required under Order 21, rule 3 of the Rules of the High Court does not change this, even though the Notice of Discontinuance did not operate as discontinuance automatically. It has been held that the fact that a Notice of Discontinuance is irregular or ineffective (for failing to seek leave) does not mean that it has no effect whatsoever, and it would be an abuse of process if the plaintiff wishes to revive the claim, per Lam J (as Lam VP then was) in Supply Chain and Logistics Technology Limited v NEC Hong Kong Limited, (unreported, HCA 1939/2006, 24 November 2008) paragraphs 6 to 10.

9. As held by Lam J, and relying on Grovit v Doctor [1997] 1 WLR 640, the abuse of process is for a party to revive the claim in question, having unequivocally intimated by filing a Notice of Discontinuance that he had no intention to pursue the claim. The abuse does not depend on the trial date having been vacated.

10. Second, as stated at Practice Note 21/5/5 in the Hong Kong Civil Procedure 2021, “A plaintiff is not able to withdraw a notice of discontinuance and thereby revive proceedings since (1) the inherent jurisdiction of the court to set aside a notice of discontinuance is in place to protect the defendant, not the plaintiff; and (2) the defendants would be deprived of certainty.”

11. Third, before the court is to exercise its discretionary jurisdiction to allow the plaintiff to withdraw the Notice of Discontinuance (assuming that it has such jurisdiction), it has to be satisfied that there are good reasons to do so. However, the only reasons given by the plaintiff through his solicitor’s affidavit is that he “has recently taken further legal advice” and that he “decides that there are good merits to continue this action against the defendant”.

12. I agree with the defendant that this is far from being a good reason because all along the plaintiff had been legally advised and represented (by counsel Mr Joe Chan and Ms Jessica Leung and by the plaintiff’s former solicitors, Messrs Victor Yeung & Co).

13. For the reasons stated above, I would dismiss the Withdrawal Summons.

14. Mr Cheung, the plaintiff’s counsel, accepts that if the plaintiff fails in the Withdrawal Summons, that is the end of the matter as he puts it.

15. Accordingly, I order as follows:

(1) The plaintiff’s Withdrawal Summons be dismissed; and
(2) The proceedings herein be discontinued.

Ruling on Costs

16. The only area of contention is the basis for taxation regarding the costs of the Withdrawal Summons.

17. The defendant asks that the costs be taxed on an indemnity basis, whereas the plaintiff says that the conduct of the plaintiff cannot be said to amount to an abuse of process.

18. In my view, taking into account all the circumstances, taxation of the costs on an indemnity basis is “appropriate” in the present case. See: Practice Note 62/App/12 of the Hong Kong Civil Procedure 2021 at page 1352.

19. I take into account that, as held in my Decision, it would be an abuse of process for a party to revive the claim, having unequivocally intimated by a Notice of Discontinuance that he had no intention to pursue the claim. That is precisely what the plaintiff is seeking to do under the Withdrawal Summons.

20. Further, Mr Cheung relied on some alleged confusion about the status of today’s hearing. I note that that is a submission from the Bar table only. As noted in the Decision, the only ground put forward by the plaintiff for the change of position between 7 April and 8 April 2021 was because of the so-called “further legal advice” given recently.

21. For the above reasons, I rule that the costs of and incidental to the Withdrawal Summons should be taxed on an indemnity basis if not agreed.

22. Accordingly, I make the order as to costs as follows:

(1) Costs of these proceedings (including the costs reserved under the order dated 9 June 2020) be paid by the plaintiff to the defendant, to be taxed on a party and party basis if not agreed; and
(2) Costs of and incidental to the Withdrawal Summons be paid by the plaintiff to the defendant, to be taxed on an indemnity basis if not agreed.

	(Wilson Chan)
	Judge of the Court of First Instance High Court

Mr Cheung Yiu-leung, instructed by Messrs Chan & Associates, for the plaintiff

Mr William Liu, Senior Assistant Law Officer (Civil Law) of the Department of Justice, for the defendant

HCMP 79/2020

[2020] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

____________________

	IN THE MATTER OF Pre‑action Discovery
	and
	IN THE MATTER OF Section 41 of High Court Ordinance, Cap 4, Order 24, Rule 7A, of the Rules of the High Court, Cap 4A, and the Inherent Jurisdiction of the Court

____________________

BETWEEN
	HUI CHI FUNG	Plaintiff
and
	COMMISSIONER OF POLICE	Defendant

____________________

Before: Hon G Lam J in Chambers

Date of Hearing: 9 June 2020

Date of Decision: 9 June 2020

_______________

D E C I S I O N

_______________

1. By originating summons in these proceedings, the plaintiff seeks pre‑action discovery from the defendant under section 41 of the High Court Ordinance (Cap 4) for the purposes of an intended application for leave to apply for judicial review. The proposed judicial review is intended “to challenge the legality and/or reasonableness and/or proportionality of the deployment of teargas in [the plaintiff’s] constituency by the police”, the constituency being A01 Chung Wan in the Central and Western District in relation to the District Council. Discovery is sought of documents “relating to the ingredient of the tear gas deployed by the Hong Kong Police Force in the Central District and the chemical compounds that would be emitted”.

2. The only point that requires determination at this moment is whether two issues should be ordered to be determined first as preliminary issues, namely: (1) whether pre‑action discovery under section 41 is applicable for intended judicial review proceedings; and (2) whether the documents sought are necessary and/or relevant for commencing the intended judicial review proceedings.

3. Applying well established principles, I do not think these questions should be tried as preliminary issues. The general rule is that all the issues in a case are to be tried at one and the same time, and the burden is on the party contending for preliminary issues to demonstrate that it is just and convenient to depart from the general rule: Telford Development Ltd v Shui On Construction Co Ltd [1990] 2 HKC 110, 117B. Preliminary issues should only be ordered in exceptional circumstances or on special grounds: Mai Gou v Mak Chik Lun [2001] 3 HKLRD 248, 251.

4. The proposed preliminary question of whether the documents are necessary and directly relevant, as required by section 41, is at the heart of the discovery action itself and turns on its substantive merits. There is nothing preliminary about it. Hearing and determining this question is likely to take up a substantial part of the time needed for dealing with the action itself. Ms Chan says that the question can at present be decided without further evidence being filed by either party. Whether further evidence is necessary is a matter for the parties but I do not consider this to be a factor supporting the ordering of preliminary issues.

5. As for the other question, it is admittedly a short and discrete one of statutory interpretation and a threshold question relating to the court’s jurisdiction. It will, however, only obviate the need to deal with the substance of the action if it is decided in favour of the defendant. The potential savings in time in the present case are, in any event, as I see it at present, limited, given that the action itself is an originating summons to be decided on affidavits, the trial of which is unlikely to occupy a very long time.

6. One must in addition take into account the difficulties that preliminary issues can sometimes create for the appellate courts, and the potential costs, time and complexities that preliminary points and appeals from them may generate.

7. I am not persuaded that there are some special grounds for the proposed preliminary issues to be ordered. I shall therefore give directions for the conduct of the originating summons.

(Godfrey Lam)
Judge of the Court of First Instance
High Court

Mr Joe Chan and Ms Jessica Leung, instructed by Victor Yeung & Co, for the Plaintiff

Ms Katherine Chan, GC of Department of Justice, for the Defendant

HUI CHI FUNG v. COMMISSIONER OF POLICE

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