Chak Choi Kwan v. Daisy Lai and Others

HCA 1241/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1241 OF 2015

____________

____________

_______________

DECISION

_______________

Introduction

1.This is an appeal of the plaintiff against the order of Master Ho dated 17 August 2015 (“the Order”) whereby the master ordered that the plaintiff’s summons filed on 21 July 2015 (“the Summons”) be dismissed and that he should pay the defendants their costs summarily assessed at HK$8,500 (“the Assessed Costs”) within 14 days from the date thereof.

2.By the Summons, the plaintiff seeks to invoke the jurisdiction of this court under Order 19 r.6, Order 14 and Order 14A and asks for default judgment and summary judgment against the defendants. I shall deal with this appeal by way of a rehearing of the Summons.

3.The subject dispute between the parties arose from an email dated 10 April 2015 sent to the plaintiff by the defendants (“the Email”). The defendants sent the Email in reply to the plaintiff’s enquiry about the progress of his application for admission to the JD programme run by Hong Kong University.

4.The Email was written in the following terms:

“The Admission Committee has carefully considered your application for admission to the JD. Unfortunately, your application has been unsuccessful. As in the past, competition for admission to the JD has been fierce, and your application was not ranked as highly as others, taking into account your academic achievements, your substantial work experience and the likely contribution you would make to the JD class.

We wish you every success in the future.”

5.Ms Lai issued the Email to the plaintiff on behalf of the JD Admissions Committee of the Faculty of Law, Hong Kong University. By the Email, the plaintiff’s application was formally rejected.

6.In the present action, in a nutshell, the plaintiff complains that the Email is defamatory of him and he thinks that he is well-qualified and indeed superior to those successful applicants. In his 20-page statement of claim, he complains that the Email was in contravention of a number of statutes, both local and international. The plaintiff at the hearing confirms that his primary case is based on the alleged breach of the Defamation Ordinance, Cap.21 and the Race Discrimination Ordinance, Cap. 602 (“RDO”).   

7.In his application form submitted to the defendants, I note that the plaintiff gave an US address in California as his correspondence address and apparently he was educated in both Taiwan and the US.

Default judgment application

8.For his default judgment application, the plaintiff relies on the undisputed fact that the defendants have not filed their defence. However, he has lost sight of the fact that upon the defendants’ application, Master Hui on 31 July 2015 allowed the defendants to file their defence within 14 days after the determination of the defendants’ application for security for costs by their summons dated 8 July 2015 (“the Security for Costs Summons”). At this hearing, Ms Yu appearing for the defendants indicates that the hearing of the Security for Costs Summons shall take place in March 2016.

9.Thus, the defendants have not failed in their obligation to file their defence. The defendants did not default their pleadings on 17 August 2015 and the master rightly dismissed the plaintiff’s application for default judgment.

Summary judgment (Orders 14 and 14A) application

10.In my view, the master also rightly dismissed the plaintiff’s summary judgment application for the following reasons.

11.First and foremost, by reason of Order 14 r.1(2), summary judgment is not applicable to the plaintiff’s claim based on the tort of defamation.  I fail to see how the plaintiff can get round this provision. On this ground alone, insofar as his defamation claim is concerned, his application must be dismissed.

12.As regards the merits, it is an essential requirement of the supporting affirmation that it must contain a statement of the deponent’s belief that there is no defence to the claim: Hong Kong Civil Procedure 2016, Vol.1,  §14/2/8 at p.266. Such a statement cannot be found in the plaintiff’s supporting affirmation.

13.It is also trite that in order to succeed in his summary judgment application, the plaintiff’s statement of claim must be in good order. His pleading consisting of long and ungrammatical sentences are mostly incomprehensible, let alone disclosing a valid cause of action. I am of the view that no summary judgment can be granted on the present state of his pleading.

14.Having been made alert to the intractable problems of his summary judgment application, the plaintiff submits that he also relies on other causes of action and that in fact he is not asking for summary judgment. He made a reference to Order 14 at the margin of the Summons with his pencil merely because a staff member of the judiciary advised him to do so when he issued the Summons. The plaintiff draws my attention to the fact that he also wrote Order 14A at the margin.

15.I accept that the plaintiff alleges some breaches of other statutes by reason of the Email including the Hong Kong Bill of Rights Ordinance, Cap.383 and International Convention on Civil and Political Rights. But it does not alter the fact that summary judgment is not applicable to his defamation claim.

16.On the other hand, the plaintiff expressly asks for summary judgment in the Summons. He even makes it clear that he wants summary judgment on merits.  With or without his reference to Order 14 in the Summons, he is plainly applying for summary judgment. I cannot begin to understand how he can now say that he is in fact not asking for summary judgment.

17.The plaintiff cannot possibly pray in aid Order 14A. There is no question of law or construction posed in the Summons. Order 14A is not available to the plaintiff too.

18.I also point out to the plaintiff another difficulty of his claim. I draw section 70(3) of the RDO to his attention and it provides that proceedings in respect of a discrimination claim under the RDO have to be brought in the District Court. The plaintiff has no answer to this at all.

19.For the reasons given, the plaintiff’s summary judgment application falls to be dismissed and I should dismiss his appeal in its entirety.

Defendants’ Application for an Unless Order

20.By their summons dated 15 October 2015, the defendants apply for an unless order that unless the plaintiff pays them the Assessed Costs within 14 days, the plaintiff’s action will be stayed.

21.This application is not supported by any affirmation. Ms Yu submits that the fact that the plaintiff fails to pay the Assessed Costs alone should suffice to justify an unless order.

22.She further relies on Falcon Private Bank Ltd v Borry Bernard Edouard Charles Limited and Anor., unreported, HCA1934/2011, 21.6.2013 to support her submission that an unless order can be granted in relation to an unsatisfied costs order.

23.I cannot agree with Ms Yu. Without any other evidence, I am not minded to grant an unless order only on account of the plaintiff’s default to pay the Assessed Costs for 3 months. There is no history of default of other orders and there is no evidence that the plaintiff is unable to pay any costs when required to do so. The quantum of the Assessed Costs does not justify the draconian remedy sought as well.

24.Therefore, I dismiss the defendants’ summons. Costs should normally follow the event. However, it does not appear to me that the plaintiff has ever responded to the defendants’ summons and it took up not more than 1 minute of the hearing time. In the circumstances, I make a costs order nisi that there be no order as to costs in respect of the defendant’s summons.

Conclusion and Order

25.The master’s decision cannot be faulted. I hence dismiss the plaintiff’s appeal and affirm the Order.

26.I am also minded to order the plaintiff to pay the defendants’ costs of the appeal forthwith. Ms Yu has attached a statement of costs to her skeleton submissions. I have heard no objection from the plaintiff. I agree that it is appropriate to make summary assessment of the defendants’ costs.

27.Having considered the statement and adopting a broad-brush approach, I assess the defendants’ costs at HK$10,000 and I make an order nisi that this should be paid by the plaintiff forthwith.

The plaintiff acting in person

Ms Yu Wen Yan of Mayer Brown JSM for the defendants