DCCJ 2191/2023
[2024] HKDC 792
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CIVIL ACTION NO. 2191 OF 2023
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BETWEEN
| SUCCESS LANE DEVELOPMENT LIMITED | Plaintiff |
| and | |
| FERGURSON HONG KONG LIMITED trading as NEW WORLD MILLENNIUM HONG KONG HOTEL | Defendant |
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| Before: | Deputy District Judge Gary C C Lam in Chambers (Paper Disposal) |
| Dates of Plaintiff’s Written Submissions: | 25 April 2024 and 16 May 2024 |
| Date of Defendant’s Written Submissions: | 2 May 2024 |
| Date of Decision: | 23 May 2024 |
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DECISION
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INTRODUCTION
1. By summons filed on 5 April 2024, the plaintiff applies for leave to appeal from my decisions handed down on respectively 22 March 2024 ([2024] HKDC 482) (the “Decision to Refuse Adjournment”) and 27 March 2024 ([2024] HKDC 509) (the “Decision on Discovery and Expert Directions”) (Collectively, the “two Decisions”). There are in total 36 paragraphs in the draft notice of appeal attached to the said summons. Paragraphs 1 – 32 concern the Decision on Discovery and Expert Directions and paragraphs 33 – 36 concern the Decision to Refuse Adjournment.
2. As the plaintiff acts in person, I initially directed that the summons be dealt with by way of oral hearing. However, given that the plaintiff informed the Registry that its available dates would only be after mid-June 2024, and that the plaintiff requested that the matter be dealt with by way of paper disposal, I gave directions for filing and exchanging written submissions and for paper disposal accordingly. Here is my decision after I have considered parties’ written submissions.
3. For an application for leave to appeal to succeed, the applicant has to convince the Court that there is a reasonable prospect of success in its intended appeal or the intended appeal is in the interests of justice: see SMSE v KL [2009] 4 HKLRD 125. Further, for an appeal against exercise of discretion, the applicant has to convince the Court that the exercise of discretion involves an error of law and/or is plainly wrong: see Agritrade Resources Ltd v Ashok Kumar Sahoo[2022] HKCA 280 at §20.
4. I shall follow the order of the paragraphs of the draft notice of appeal. In other words, I shall deal with paragraphs 1 – 32 concerning the Decision on Discovery and Expert Directions first, followed by paragraphs 33 – 36 concerning the Decision to Refuse Adjournment. Also, in its reply submissions, the plaintiff also raises some additional grounds not in the draft notice of appeal, and at appropriate junctures, I shall deal with them as well for the sake of completeness. For convenience, I shall adopt the definitions and abbreviations used in the two Decisions, and unless stated otherwise, the references to paragraph numbers below are references to the paragraph numbers of the draft notice of appeal.
DECISION ON DISCOVERY AND EXPERT DIRECTIONS
Paragraph 1
5. Paragraph 1 of the draft notice of appeal states that I erred in law in granting the order set out in paragraph 42 of the Decision on Discovery and Expert Directions, because it was not the order sought by the defendant in D’s Discovery and Expert Summons.
6. This ground is unmeritorious. In the exercise of my discretion, I was perfectly entitled to grant an order as I thought fit, so long as the order was within the scope of the summons, namely, discovery of the relevant documents and expert directions on the relevant issues to the present action.
Paragraph 2
7. Paragraph 2 of the draft notice of appeal states that I erred by allowing the defendant to rely on the plaintiff’s affirmation dated 12 July 2023 in relation to the plaintiff’s application for injunction, to which affirmation a bundle of correspondence was exhibited containing the Plaintiff’s 18 May 2023 Email which referred to the very document the defendant sought discovery of by D’s Discovery and Expert Summons, namely, a “detailed inventory, complete with photos and videos, of the items in Room 442 and their respective values, as compiled by the Plaintiff and referred to by the Plaintiff in its email to [the defendant] dated 18 May 2023”. The plaintiff contends that this affirmation was not evidence for D’s Discovery and Expert Summons, and thus it was erroneous for me to consider that.
8. This ground is unmeritorious. The Plaintiff’s 18 May 2023 Email was enclosed with the defendant’s letter of 14 September 2023 exhibited in LHY-1 in the defendant’s affirmation in support. In any event, I see nothing wrong for the defendant to rely on an affirmation of the plaintiff filed previously in the same proceedings – it had been read by the Court previously and was on the court record, and thus I could not simply ignore it.
9. In this ground, the plaintiff also complains incidentally that I erred in taking the view that because the plaintiff’s affirmation dated 12 July 2023 was included in the hearing bundles served on them two weeks before the hearing, the plaintiff would have “the time to handle the affirmation during the hearing”. I fail to appreciate the complaint. The affirmation was the plaintiff’s own affirmation, and inclusion of the plaintiff’s own affirmation in the bundle served on the plaintiff two weeks before the hearing would have sufficiently alerted the plaintiff (if the plaintiff had not already been alerted by reading the defendant’s affirmation in support) that the defendant would rely on that affirmation. Such complaint has no merits at all.
Paragraph 3
10. Paragraph 3 of the intended draft notice of appeal in essence complains that I erred by permitting the defendant to expand the scope of D’s Discovery and Expert Summons from Order 24 rules 3 and 7 and Order 40 to also Order 24 rules 9, 10, 11, 11A, 13, 14A and Order 38.
11. It is well-established that “[t]he citation of an erroneous jurisdictional bases in the margin notes of summonses does not prevent the Court from granting relief under the proper basis”: see G v N[2024] HKCFI 655 at §8 per Mimmie Chan J. An important question is whether the “change” of the basis would cause prejudice to the respondent to the application: see Premier Fashion Wears Ltd v Li Hing Chung [1994] 1 HKLR 377 at 379(40) per Bokhary JA.
12. In this regard, the plaintiff, in its reply submissions, refers me to Mimi Kar Kee Wong Hung v Severn Villa Ltd and others [2014] 1 HKLRD 1088 in support of its proposition that amendment would be needed for reliance on rules not expressed in the margin note. In my view, the plaintiff’s reliance is misplaced, because that case was a case on whether counsel certificate could be granted after the costs order without counsel’s certificate was made. Although leave was granted to amend the margin note of the summons, that case does not stand for any proposition that an amendment must be made to the margin note because other rules could be invoked – this was simply not the live issue in that case.
13. In §§62 of its reply submissions, in further support of the same proposition, the plaintiff refers me to Patrick Hung Hing Yu v Ho Yin Man [2017] 1 HKLRD 1193 at §2, Beijing Tong Gang Da Sheng Trade Co Ltd v Allen & Overy [2015] 3 HKLRD 247 at §24 and T v C, HCCT 23/2015, 14 March 2016 at §7. I have considered them all, and do not find any of them supports such a proposition.
14. In any event, if there were any inconsistencies, I am bound by the Court of Appeal’s decision in Premier Fashion Wears Ltd v Li Hing Chung, supra.
15. In the present case, in respect of the discovery of the “detailed inventory”, Order 24 rules 3 and 7 would only require the plaintiff to file and serve a list of documents verified by an affirmation. However, in D’s Discovery and Expert Summons, the defendant had already requested for “provision” of the documents. In fact, even assuming that the defendant would have only asked for the list of documents under Order 24 rules 3 and 7 only, the plaintiff would still be required by Order 24 rule 9 (whether an application was made to the Court under this rule or Order 24 rule 11 or otherwise) to allow the defendant to inspect the documents, and the plaintiff would also be required by Order 24 rule 11A (whether an application was made to the Court under this rule or not) to provide copies of the documents upon the defendant’s notice.
16. The plaintiff indeed had no misunderstanding of what D’s Discovery and Expert Summons was after. Throughout the plaintiff’s written submissions, the plaintiff was also focused not only on the list of documents but also on production and provision of copies. Further, during the oral hearing of D’s Discovery and Expert Summons, the plaintiff’s representative, Ms Yung, also made submissions that she was confused by the words “production” (used in the defendant’s written submissions) and “provision” (used in D’s Discovery and Expert Summons) and that she would have difficulty in producing the inventory because she had no idea which inventory the defendant was targeting at. Therefore, the plaintiff was well aware of the scope of the discovery application covering production or provisions of the documents, and did make whatever arguments she thought fit in opposition to the application.
17. As regards Order 24 rule 13, whether the defendant would expressly refer to this rule or not, the Court would still be required to consider whether the discovery being sought would be necessary for a fair disposal of the matter and/or saving costs. Similarly, whether the defendant would expressly refer to Order 24 rule 14A or not, the undertaking not to use the discovered documents for ulterior purposes would still fully apply.
18. Therefore, allowing the defendant expressly to rely also on Order 24 rules 9, 10, 11, 11A, 13 and 14A did not cause any prejudice at all.
19. In respect of the expert directions, it was plainly obvious that the defendant’s citation of Order 40 was erroneous. Order 40 concerns application for a court expert, and I took into account the fact that the plaintiff, acting in person, may not appreciate that the error was plainly obvious. That said, it is clear from D’s Discovery and Expert Summons and the supporting affirmation that the defendant applied for expert directions under Order 38 because the expert directions being sought provided for both parties’ respective experts, which would not be the case under Order 40. Further, both parties’ submissions addressed the application on the basis that each party would be able to have its own expert, if expert directions were ordered. The plaintiff never addressed me on the basis that the defendant was applying for a court expert or any kind of single expert. Thus, the permission for the defendant to rely on Order 38 was more of formality correction rather than any change of substance. I see no prejudice suffered by the plaintiff as a result of this correction.
20. Lastly, the plaintiff complains that I did not offer it an opportunity to oppose the defendant’s reference to these rules not cited in the marginal notes of D’s Discovery and Expert Summons. This is far from the fact. First, in §§49 and 52 of the plaintiff’s 19-page submissions filed before the hearing, the plaintiff already raised the objection to the defendant’s so-called “[expansion of] the scope by including Order 24, rules 9, 10, 11, 11A and 13” and “O.38 rr 4 & 4A”. Second, at the beginning of the hearing, I invited the defendant to explain the purposes of producing two authorities right before the hearing, which were authorities on wrong citation of the rules in the marginal notes of a summons. I then expressed my provisional view to the plaintiff that I did not see any prejudice in allowing the defendant to rely on rules not stated in the marginal notes. The plaintiff’s representative, Ms Yung, then repeated the essence of the plaintiff’s written submissions that it would be unfair to the plaintiff that the defendant could rely on other rules at such late stage. I disagreed that the plaintiff would suffer any prejudice having heard Ms Yung’s submissions. In this regard, I note that even in the draft notice of appeal and the written submissions, Ms Yung still did not say what real prejudice the plaintiff had suffered.
Paragraph 4
21. Paragraph 4 complains that I amended the terms of the order being sought by the defendant in D’s Discovery and Expert Summons. This is in effect the same complaint as paragraph 1, which is unmeritorious as explained above.
Paragraphs 5 and 6
22. Paragraphs 5 and 6 complain that I failed to consider the defendant’s change of stance regarding the inspection of belongings and loss assessment as an abuse of the court process. This complaint arises from paragraphs 32 – 33 of the Decision on Discovery and Expert Directions. I have re-considered the matter, and I find nothing wrong in the reasoning in paragraphs 32 – 33 in respect of this so-called defendant’s change of stance as perceived by the plaintiff.
Paragraphs 7 and 8
23. The essence of paragraphs 7 and 8 is that while I considered paragraphs 18 – 23 of HH Judge Harold Leong’s Chinese Reasons for Decision [2024] HKDC 68 handed down on 9 January 2024, those paragraphs did not correctly record the plaintiff’s stance in respect of joint inspection as orally stated to His Honour at the hearing. According to the plaintiff, at the hearing before His Honour, the plaintiff offered for joint inspection of damaged items, and it would not claim for undamaged items and thus undamaged items should not be for joint inspection. The plaintiff submits before me that therefore, it was wrong for me to say that the plaintiff had only offered unilateral inspection.
24. As I said in the exchange with Ms Yung during the hearing on 27 March 2024, the plaintiff also claimed for lost or missing items. Therefore, it would be unfair for the plaintiff unilaterally to exclude from joint inspection what it thought were undamaged items, and then proceed to claim for lost items. By such exclusion, the defendant would simply have no way to verify whether the alleged lost or missing items were really lost or missing, or whether they were actually among the undamaged items already filtered out by the plaintiff unilaterally. Further and in any event, as I explained in paragraph 33(2) of the Decision on Discovery and Expert Directions, the so-called inspection proposed by the plaintiff would be done without the “detailed inventory” now being discovered or any inventory, and such inspection would not be fair and effective at all.
25. Therefore, it is clear from my exchange with Ms Yung during the hearing, consistent with paragraphs 18 – 23 of HH Judge Harold Leong’s Chinese Reasons for Decision handed down on 9 January 2024, that the plaintiff had not offered any joint inspection as now sought by the defendant in D’s Discovery and Expert Summons, and thus I did not (and still do not) accept the plaintiff’s contention that the defendant changed its stance from opposing a joint inspection in the past to supporting a joint inspection. The inspection proposed by the plaintiff and opposed by the defendant in the past is substantially different from the one being sought by the defendant before me. Paragraphs 7 and 8 have no merits at all.
Paragraphs 9 and 10
26. Paragraphs 9 and 10 repeat the plaintiff’s argument that any discovery and inspection would be premature. I considered this argument, and dealt with it in paragraph 36 of the Decision on Discovery and Expert Directions. I maintain that because of the procedural history of the present case, namely, there had been a number of interlocutory applications where the parties had filed substantial evidence and thus were aware of the issues, it was appropriate to exercise my discretion to order the discovery and expert directions. I see nothing wrong in the exercise.
27. I should add that in paragraph 10 of the daft notice of appeal, the plaintiff said that “the request for P’s documents and evidence is aiding D in perfecting its defence”. I would rather put it this way – the discovery of the document would help the parties to know the particulars of the live issues. Right now, the plaintiff still has not given any particularised (or “detailed” as described by the plaintiff in its own Plaintiff’s 18 May 2023 Email) list of inventory, and the defendant simply has no fair opportunity properly to respond.
Paragraph 11
28. Paragraph 11 repeats the plaintiff’s argument at the hearing that there may be further damage after the joint inspection and assessment now, and therefore further joint inspection and assessment would be necessary if I would order one now, and this would be a waste. As I said in paragraph 34 of the Decision on Discovery and Expert Directions, and the plaintiff has not challenged, any further joint inspection and expert report would be made easier with the ground work already carried out now. This is sheer common sense.
29. Thus, there is no substance in paragraph 11.
Paragraph 12
30. Paragraph 12 states that I failed to consider the possibility of an order for a split trial at a later stage. As I said in paragraph 34 of the Decision on Discovery and Expert Directions, there was no application and no evidence for me to rule on any order for split trial. I made my decision based on what I had and what not, but not on any speculation as to what possibility would happen at a later stage.
31. If there would be an order for split trial at a later stage, it would be up to the parties to seek any consequential directions including directions to vary any case-management directions previously made, if it would be appropriate to do so.
Paragraph 13
32. Paragraph 13 in essence is an argument repeating paragraph 2 of the draft notice of appeal, that the defendant should rely on its own affirmation but should not rely on the plaintiff’s previous affirmation. As explained above, such argument is unmeritorious.
Paragraph 14
33. Paragraph 14 seems to say that by allowing the defendant’s discovery of the defendant’s own document, namely, the “list of the items moved out of the Room on 18 May 2023 as recorded and prepared by the Defendant”, it would mean that the defendant would be allowed to define the plaintiff’s claim.
34. This is plainly wrong. The defendant’s own document would not be conclusive to the plaintiff’s claim. Pursuant to the expert directions I granted, the defendant’s document would be compared with the plaintiff’s inventory, and further lists would be compiled by the experts upon joint inspection. This would then define the particularised issues for trial, and the Court would then hear evidence and make determinations.
Paragraph 15
35. Paragraph 15 is again a repetition of paragraph 2 of the draft notice of appeal. It also contends that the Plaintiff’s 18 May 2023 Email was written by another director (whom the representative of the plaintiff, Ms Yung, at the hearing before me confirmed to be his husband), and the affirmation of Ms Yung did not refer to that email, and thus the defendant’s application had no evidence referring to that email. Such contention is stated to be rejected.
Paragraph 16
36. Paragraph 16 states that I made a clear mistake in finding that the other director had communicated to Ms Yung about possessing numerous inventory lists at the time he composed the Plaintiff’s 18 May 2023 Email. The plaintiff further says that “[my] deduction that all such lists exist and that the term ‘inventory’ in P’s email dated 18 May 2023 encompasses all these lists, forms a story crafted by the DDJ himself… DDJ ordered to uncover all the lists is, in essence, a fishing”.
37. First, as I said in paragraph 18 of the Decision on Discovery and Expert Directions, there was no evidence before me to rebut the prima facie evidence of existence of the inventory, the very inventory referred to by the plaintiff itself in its own Plaintiff’s 18 May 2023 Email.
38. Second, it was Ms Yung at the hearing who told me that she understood from the other director (whom she identified to be her husband upon my seeking clarification), there were many inventory lists at the time of the Plaintiff’s 18 May 2023 Email and thus she raised an argument that the plaintiff had no idea which lists the defendant would like to discover. While this was not put in evidence, as I pointed out in §18 of the Decision on Discovery and Expert Directions, this “saying from the bar table would only point to the existence of the inventory”.
39. Third, the inventory lists were clearly relevant to the issues, as explained said in paragraph 18 of the Decision on Discovery and Expert Directions. There is no fishing.
40. Therefore, paragraph 16 is unmeritorious.
Paragraph 17
41. Paragraph 17 states that because neither the defendant nor I knew whether there was only one copy or multiple copies of the inventory mentioned in the Plaintiff’s 18 May 2023 Email, the order for discovery would be fishing.
42. What is important, in my view, is that what the “detailed inventory” was or were must be something the plaintiff itself (whether through Ms Yung or her husband, both of whom were and still are the directors of the plaintiff) knew (and still know). It would be preposterous for the plaintiff now (or any of the directors) to say that it did not know what “detailed inventory” it (and its directors) had in mind. The plaintiff is simply ordered to discovery of the inventory referred to in the Plaintiff’s 18 May 2023 Email written by its own self through its own director.
43. This ground of appeal is stated to be rejected.
Paragraph 18
44. Paragraph 18 states that the discovery order was oppressive because the list would be a detailed list of 2,000 items.
45. The order is not oppressive at all. The list(s) would be just the list(s) already compiled at the time of the Plaintiff’s 18 May 2023 Email. The order is not asking the plaintiff now to compile any new list at all.
Paragraph 19
46. Paragraph 19 complains that the defendant failed to satisfy the possession requirement and distinguish the difference between “has been” and “had been”.
47. First, there was no evidence to deny the prima facie evidence of possession, namely, the reference to the “detailed inventory” in the plaintiff’s own Plaintiff’s 18 May 2023 Email.
48. Second, at the oral hearing, Ms Yung seemed to suggest a possibility that the inventory lists had been lost. Be that as it may, the lists would still be discoverable as documents which “have been” in possession of the plaintiff, and the plaintiff may then need to explain on oath the whereabouts of the inventory or why the inventory is no longer in the plaintiff’s possession. As regards the argument of “has been” and “had been”, I fail to understand the point the plaintiff would like to make here.
49. Paragraph 19 is unmeritorious.
Paragraph 20
50. Paragraph 20 complains that I “erred in concluding that relevance clearly outweighs privacy under the authority at §19”. I have re-considered the matter, and I maintain the view expressed in paragraph 19 of the Decision on Discovery and Expert Directions.
Paragraph 21
51. Paragraph 21 in essence says that the defendant was already aware of the some of the contents of the plaintiff’s belongings from the partially particularised re-amended statement of claim and from the defendant’s moving the plaintiff’s belongings.
52. First, there is no evidence that when moving the plaintiff’s belongings, the defendant came to know its contents.
53. Second, paragraph 4 of the re-amended statement of claim avers that:-
“… the Defendant insisted on retaining the Plaintiff’s belongings (about 200 packs/boxes of valuable items), which include but are not limited to business documents, personal belongings of the Plaintiff’s directors, and valuable items, which are of a sensitive and private nature, all stored inside the Room (“the Belongings”)…”
54. Such averments, if they can be taken as particulars of the belongings at all, are inadequate and incomplete.
55. So, this ground is unmeritorious.
Paragraph 22
56. Paragraph 22 seems to suggest that the defendant did not invoke Order 24 Rule 14A and thus the implied undertaking thereunder does not apply to the defendant. This suggestion is plainly wrong. The implied undertaking applies whether or not the applicant specifically refers to it in the summons or not.
57. Further, the plaintiff seems to have no comfort in relying on such undertaking. However, the plaintiff has not adduced a single piece of evidence to explain why the defendant would or would likely breach the undertaking despite the serious consequence of such breach. The Court does not make decisions on any party’s groundless worry that the other party would breach undertakings to the Court.
58. This ground is unmeritorious.
Paragraph 23
59. Paragraph 23 states that I “erred by not considering the risk of theft of all expensive items when P provides the list of items before the actual inspection and even after the inspection, when P’s belongings remain at D’s car park.”
60. First, there was no evidence of any risk of theft.
61. Second, if there was such a risk, it would be all the more important that the joint inspection should be carried out as soon as possible.
62. Third, the list(s) would still be relevant, and if the plaintiff’s worry that there had been or would be theft, or the worry would realise, and the theft would cause difficulty in comparing the items against the list(s), then at the evidence stage, the plaintiff could explain the matter. The trial judge would make factual findings based on the assessment of evidence.
63. In any event, I do not see why such a risk (even assuming that this risk is not fanciful but real) would have any effect on the discovery and expert directions application.
64. Paragraph 23 is devoid of merits.
Paragraph 24
65. Paragraph 24 complains that the defendant did not explain the relevance of the inventory. The defendant may or may not make the argument clear. In any event, in paragraph 16 of the Decision on Discovery and Expert Directions, I set out the issues as crystalised by the pleadings. From this, the relevance of the inventory is self-evident. To state the obvious here, the inventory would show what the items of the plaintiff’s belongings were, an issue crystalised by the pleadings as set out in paragraph 16(1) of the Decision on Discovery and Expert Directions.
Paragraph 25
66. Paragraph 25 states that I “was plainly wrong in failing to take into account that D’s document is, in fact, a packing list, which in no way can assist the inspection”.
67. The defendant’s list is a “list of the items moved out of the Room on 18 May 2023 as recorded and prepared by the Defendant”. This is relevant to the issue of what items were removed from the Room, as set out in paragraph 16(2) of the Decision on Discovery and Expert Directions. If it would turn out that the experts or any of them would find it insufficient with this list, they may say so in their expert reports, and if necessary, further application may be made under “liberty to apply” or otherwise as thought fit as to how to implement the order.
68. I see nothing wrong in the exercise of my discretion here.
Paragraph 26
69. Paragraph 26 complains that I “was plainly wrong in failing to take into account that P has not been able to access the belongings since 4 September 2022, and D’s expert direction summons, items 3 and 4, make reference to the lost, loss and damage done between 18 May 2023 to the inspection day. This is illogical and serves no purpose; items 3 and 4 should be dismissed.”
70. Any loss and damage between 18 May 2023 and the date of the joint inspection would be the basis for working out what were the items prior to 18 May 2023. While one has to accept that the evidence may not be perfect as to the status prior to 18 May 2023, such evidence would be a piece of evidence among others including oral evidence of the plaintiff as to what there should be, along with the inventory lists to be discovered.
71. Paragraph 26 has no substance.
Paragraph 27
72. Paragraph 27 in essence states that any undamaged items should be excluded from the inspection, because undamaged items are not relevant to the plaintiff’s claim.
73. Of course, undamaged items are not relevant to the plaintiff’s claim. However, as explained in paragraph 24 above, it would be unfair for the plaintiff to exclude what it thought were items not claimed by the present action, and then proceed to claim for lost items. By such way, the defendant would simply have no way to verify whether the alleged lost items were really lost, or were actually among the unclaimed, undamaged items.
74. Paragraph 27 is not a valid ground of appeal.
Paragraph 28
75. Paragraph 28 seems to suggest that I failed to take into account that relocation of the plaintiff’s belongings is a dispute between the parties.
76. There is no dispute that there was such relocation. I think what the plaintiff really says is that it disputes whether it was necessary and proper for the defendant to re-locate the items, and legally, whether by such relocation the defendant breached any duty owed to the plaintiff. If that is a live issue as crystalised by the pleadings, the determination of D’s Discovery and Expert Summons one way or the other would not smother it, because D’s Discovery and Expert Summons is about quantum rather than liability.
Paragraph 29
77. Paragraph 29 states that I “erred by assuming that the 18 May 2023 Email exists and by further assuming that the list itself would provide the particulars required. Based on these alleged known particulars, he proceeded to give directions for items 2 to 4 of D’s summons, even though they are impracticable.” I am taken aback if the plaintiff would really now want to argue that the Plaintiff’s 18 May 2023 Email did not exist. This was never raised.
78. I think the plaintiff seems to submit, as Ms Yung did at the oral hearing of 27 March 2024, that the inventory would not contain the particulars as its description “detailed inventory, completed with photos and videos, of the items in Room 442 and their respective values” suggests, and thus, the expert directions would be impracticable.
79. I made my decision on the evidence before me. But I also noted Ms Yung’s submissions at the oral hearing, and thus, in the event that the inventory discovered would not be as particularised as its own description suggests, or for some other reasons, the expert directions I gave would become impracticable, I provided “liberty to apply” as explained in paragraph 35 of the Decision on Discovery and Expert Directions as to how to implement the order.
80. Therefore, paragraph 29 has no merits.
Paragraph 32
81. It is convenient at this juncture to deal with paragraph 32 of the draft notice of appeal first, which states that “liberty to apply” is unreasonable and prejudicial to the fair and efficient conduct of the case.
82. As I said, I made my decision on the evidence before me. But one has to accept the reality that the implementation of an order granted based upon the evidence before the Court may encounter difficulty, for example, the evidence presented before the Court may turn out in the implementation of the order to be false. Thus, in the exercise of my discretion, I found it appropriate to provide “liberty to apply” as to how to implement the order, just in the event, for example, that the inventory list was actually not as detailed and not with photos and/or videos as the plaintiff itself described, a stance apparently taken at the oral hearing contrary to the evidence presented before me.
83. Therefore, I was perfectly entitled to provide “liberty to apply” in the exercise of my discretion.
Paragraph 30
84. Paragraph 30 is a repetition of paragraph 3 of the draft notice of appeal. I have dealt with it above.
Paragraph 31
85. Paragraph 31 concerns P’s Amendment Summons. In essence, it disagrees with paragraph 8 of the Decision on Discovery and Expert Directions and submits that the disallowed amendments are relevant to the defendant’s change of stance and costs.
86. I have reviewed the disallowed amendments and fail to see why such amendments should be allowed. If the amendments were relevant to costs, they could be raised at the arguments on costs in some proper forum as all those disallowed amendments concern previous court applications. Pleadings are for pleas of matters relevant to the substantive disputes.
“Predetermined decision” point raised in reply submissions
87. In its reply submissions, the plaintiff made a heading “With the predetermined decision in mind, during the hearing on 27 March 2024” for §§54-65 of the reply submissions. Those paragraphs are in essence repetition of the various paragraphs of the draft notice of appeal, which I have dealt with above, but do not explain why the plaintiff thinks that the decision was predetermined. I fail to see any merits in the complaint.
Impracticable for experts to determine the issues
88. In §70 of its reply submissions, the plaintiff submits that it would be “totally impracticable for the experts to determine what items have been damaged and lost between the removal date and the inspection date”, and “Order given at §42(6)(d)(ii) that for the expert to decide on the cause of the damage is also meaningless as it is the court duty and not the expert to rule on causation”.
89. Evidence is rarely ideal, and the task of the trial court is to do its best efforts to make fact-findings based on the evidence (factual and expert) presented, having tested the evidence at trial. This less-than-ideal situation does not mean that it would be “impracticable” or “meaningless” to have the expert evidence as directed. With the expert evidence, the trial judge would have better evidential basis to find facts as best as it can.
90. There is nothing in this complaint.
Location of the joint inspection too vague
91. In §73 of its reply submissions, the plaintiff complains that “the premises of New World Millennium Hong Kong Hotel” for the joint inspection in paragraph 42(3) of my order in the Decision on Discovery and Expert Directions is too vague, and that the location of the joint inspection would be a dispute. This point was not raised at all during the hearing on 27 March 2024, and in any event, the plaintiff has not explained why the location would be a dispute, and I do not see any basis to say that any party would simply dispute anything for the sake of disputing. In any event, the location of the joint inspection would simply be about how the order should be implemented, and if necessary, the parties may apply under “liberty to apply”.
92. This complaint is unmeritorious.
Conclusion on intended appeal against the Decision on Discovery and Expert Directions
93. All in all, I see no prospects of success in appealing against the Decision on Discovery and Expert Directions.
DECISION TO REFUSE ADJOURNMENT
94. Paragraph 33 submits that the facts in Sun Hing Cheong Textile Ltd v Chan Wai Ming and others[2018] HKCFI 765 “are the same as in the present case”, and thus I should have followed that case to grant the adjournment.
95. Putting aside that that decision, being a Court of First Instance decision, is not binding on me, in my view, the facts of that case are not the same. The following are the material distinctions.
(1) The hearing adjourned in that case was a 9-day trial. While that case was not complicated, the learned judge was of the view that the case was not straightforward, with over 2,000 pages of documentary exhibits: see paragraph 20 of that decision. In the present case, the hearing sought to be adjourned was a one-day hearing of P’s Amendment Summons and D’s Discovery and Expert Summons only. The Summonses were not complicated and were straightforward. There was only one lever-arch file of 163 pages for the hearing.
(2) In that case, the original counsel team were unexpectedly caught in another trial which could not finish as originally scheduled: see paragraph 7 of that decision. That was the reason for the change of the counsel team and thus necessitated the application for the adjournment. However, in the present case, there was no explanation in the evidence for why the plaintiff saw fit only to engage lawyers at such a late stage that it made itself difficult to engage counsel available to prepare for the hearing of the summonses. Even if I am to consider the apparent explanation set out in §§30-31 of the plaintiff’s reply submissions (not in any evidence) that it was the sudden influx of the various applications the plaintiff had to make within a short time, I would still fail to understand why the plaintiff would have to engage lawyers who would not have the sufficient capacity to handle these various applications within the short time. The present case is not complicated at all and I am not with the apparent suggestion made by the plaintiff in §31 of its reply skeleton submissions that the plaintiff would have engage various teams of lawyers to handle its various applications it decided to make.
(3) In that case, the adjournment was restricted to 4 days only, for the new team of counsel to prepare for the trial, and the trial would resume within the 9-day period already fixed. In the present case, the adjournment sought was effectively a sine dine adjournment, premised upon the 42 days sought by the plaintiff to refine its amendments to the re-amended statement of claim, though no draft or no indication of what refinements would be made was provided.
96. Paragraphs 34 – 35 are matters which the plaintiff essentially says I failed to accord proper weight. I fail to see how this would convince the appellant court that the refusal to adjournment was a plainly erroneous exercise of discretion. Here, I note that in §40 of its reply submissions, the plaintiff also stated that “any delay in resolving a summons, whether it is ultimately granted or not, is inherently prejudicial”.
97. In §38 of its reply submissions, the plaintiff raised an argument, not in the draft notice of appeal, that I failed to consider the prejudice to the plaintiff caused by the plaintiff’s lawyers ceasing to act should there be no adjournment granted. Putting aside that this argument is not in the draft notice of appeal:-
(1) Towards the end of the hearing on 22 March 2024, the plaintiff’s then legal representative merely informed me that “there is a very real probability… we have – me and client, we have talked about the possibility of us ceasing to act and them have to act in person again”. In the solicitor’s affirmation in support of the adjournment application, it was never said that the solicitors would cease to act if no adjournment would be granted.
(2) Further, whether or not I was so informed as set out above, I was well aware of the possibility that the plaintiff might become a litigant-in-person again. However, this possibility did not appear very significant to me in the light of the evidence (or more precisely, absence of evidence that the plaintiff’s then lawyers would cease to act), and thus in the balancing exercise, I did not expressly, although I did, consider this possibility and the consequence. At the end, I came to the conclusion that an adjournment should not be granted.
(3) As a matter of fact, there was indeed no or no sufficient prejudice suffered by the plaintiff, given (a) the plaintiff’s capability to prepare two detailed submissions for the hearing of 27 March 2024 with references to authorities; and (b) the merits and demerits of the plaintiff’s positions in respect of P’s Amendment Summons and D’s Discovery and Expert Summons.
98. Paragraph 36 complains that I should not have characterised the documents prepared by the plaintiff without lawyers’ assistance “professionally prepared”.
99. First, I did not say that they were professionally prepared. I said at paragraph 10(3) of the Decision to Refuse Adjournment that the documents “look professional”.
100. Second, the point I made from this is that the papers were, as stated in paragraph 10(3) of the Decision to Refuse Adjournment, not in any haphazard manner and thus the solicitors then recently engaged by the plaintiff would not require substantially extra time for reviewing. Therefore, not much difficulty would be caused for the preparation for the 27 March 2024 hearing and thus, in the balancing exercise, this would be against an adjournment.
101. In §51 of its reply submissions, not in the draft notice of appeal, the plaintiff complains that I ordered the defendant to submit a statement of costs without offering any opportunity for the plaintiff to oppose. I failed to see any substance in the complaint – I already ordered at the end of the hearing that the plaintiff should pay the defendant’s costs, and thus it would only be the defendant to submit a statement of costs for summary assessment. Further, in §52 of its reply submissions, the plaintiff complains that I assessed the costs excessively because a 3-minutes call-over hearing would usually costs about HK$700. However, the plaintiff missed the point that the hearing of 22 March 2024 could not and was not a call-over hearing – the defendant had to deal with the plaintiff’s application substantively because the plaintiff’s application was to adjourn the hearing of the following Wednesday (27 March 2024). I do not see that there is any reasonable prospect that the Court of Appeal would intervene in this costs assessment.
102. In the premises, I see no prospects of the plaintiff succeeding in appealing against the Decision to Refuse Adjournment on these grounds.
CONCLUSION ON PLAINTIFF’S APPLICATION FOR LEAVE TO APPEAL
103. For the reasons given above, I am not convinced that there is any reasonable prospect of success in the plaintiff’s intended appeal. Nor am I convinced that the intended appeal would be in the interest of justice. Therefore, I dismiss the plaintiff’s summons with costs to the defendant payable forthwith.
104. The defendant seeks assessment of the costs on indemnity basis, arguing that the plaintiff’s present application is so unmeritorious and/or abusive. There is force in the defendant’s argument, but at the end of the day, I am not persuaded that the present occasion, being the plaintiff’s first attempt to apply for leave to appeal against the two Decisions, is appropriate for indemnity basis. I summarily assess the costs at HK$45,000.
| | ( Gary C C Lam ) |
| | Deputy District Judge |
The plaintiff appeared in person
Mr Cedric Yeung, instructed by Messrs Y T Chan & Co, for the defendant