Chim Pui Chung v. Apple Daily Ltd and Others
Read the full judgment text of HCA 1286/2014 on BabelCite. This High Court CFI judgment was delivered on 19 April 2016.
1. By summons dated 13 January 2016, the Defendants (“Ds”) applied for leave to adduce expert evidence, which the plaintiff (“P”) contests.
Cites 9 cases
|
HCA 1286/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 1286 of 2014 __________________
________________________ D E C I S I O N ________________________ THE APPLICATION 1.By summons dated 13 January 2016, the Defendants (“Ds”) applied for leave to adduce expert evidence, which the plaintiff (“P”) contests. 2.The parties are legally represented.[1] 3.The expert report that Ds seek leave to adduce is to support Ds’ plea of justification defence, in particular, the following pleaded meaning: -
4.The main reason of P’s objection is that Ds have given the evidence in the witness statement, which will be apparent to the trial judge without any assistance from an expert. This will be explained below. FACTUAL BACKGROUND 5.This is a defamation case where P alleges that Ds had published a defamatory article in a newspaper against him. The Article reads as follows: -
6.The translation of the article in English is:
DISCUSSION The pleaded case - justification 7.One of the defences that Ds have pleaded in the Defence is justification. Paragraph 11 of the Defence reads:
8.P denies this paragraph and put D to strict proof.[4] P’s objection 9.P objects to the expert evidence and says: “The rhetoric question being asked is what is the technical aspect that this court is requiring the assistance of an expert. There is no issue which is highly complex, beyond the knowledge capacity or capability of the court to fully understand the technical aspect of such matter. The court does not need an expert to understand the truthfulness of the meaning “a person claiming to have a close to 100% win betting formulae” should not be taken seriously or must be a joke.”[5] 10.P further submits that D3 has already stated in his witness statement on the point of justification. In paragraphs 17 and 18 of the witness statement, he said:
11.P’s main complaint of the article is that the formula will lead a punter to become bankrupt and he has to hang himself. Ds’ argument 12.Ds’ argument is that P has not made his position clear and P’s position on the formulae is rather doubtful. For the purpose of his pleadings, P in effect maintained that the formulae were 100% win betting formulae.[7] The question to ask would then be, what is P’s position? It is plain that P is maintaining that the formulae have a 100% chance of winning, and clearly Ds do not share such view. It is submitted that the expert report would clearly “be helpful to the court in arriving at its decision” on the issue.[8] 13.Ds will therefore assume that P denies paragraph 11 of the Defence as a whole. The Court’s observation 14.It is clear that since P opposes this application, Ds have to obtain leave from this Court to adduce expert evidence under O 38, r 36 RHC and the burden is on them to show to this Court that the proposed expert evidence is relevant to the issues in dispute, Majorette Hong Kong Ltd v Fullmore Corporation Ltd (unreported, HCA 1583/2008 and HCA 1599/2008, 23 June 2010, §7). The court has to examine the pleadings to determine whether the proposed expert evidence is required in the pleaded case: Yeung Ga Wai v Lau Ming Shum (unreported, HCA 798/2004, 19 July 2012.) The legal principles in Wong Hoi Fung v American International Assurance Co (Bermuda) Ltd & Another [2002] 2 HKLRD 507 are quite clear and it does not require this Court to set them out here. Suffice it to say, if this Court is unclear about whether expert evidence should be admitted, this Court should give leave to Ds to adduce the expert evidence. It is only clear that the expert evidence is irrelevant or inconsistent with the primary objectives under Order 1A of RHC, this Court should rule out the admissibility. 15.It will be difficult to read P’s Statement of Claim that P is maintaining that the formulae have a 100% chance of winning. See paragraph 5 above. Ds are also complaining that P’s position as appeared on the pleadings is not clear. In the circumstances, the issues of the parties’ pleaded case appear to be unclear. It is the parties’ duty to identify clearly the issues in dispute at the early stage of the proceedings. Issues cannot be brought up without proper clear pleadings. International Ltd v Hyundai-CCECC Joint Venture (a firm) (2013) 16 HKCFAR 632, §§33 & 34. In Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd & Another (2015) 18 HKCFAR 364, where Mason NPJ said at 75.
16.Expert evidence must be confined to the live issues of dispute between the parties, which must be sought from the pleadings China Gold Finance Limited v CIL Holdings Limited & Ors (unreported, HCA 2900/2001, 25 September 2012, at paras 17-18.) See also §21 of the Court of Final Appeal’s Decision in Kwok Chin Wing v 21 Holdings Ltd (formerly known as GFT Holdings Ltd, Capital Prosper Ltd and Rockapetta Holdings Ltd) & Another (2013) 16 HKCFAR 663 per the CJ. 17.It seems that those issues as set out in paragraph 11 of the Defence on justification do not tally with the article in question. At least, Ds are not asking the expert to tell the court that using P’s formulae will bankrupt the punter before finalists 16. This morning, P is telling this Court that the main objection to paragraph 11 of the Defence is this part, ie, that the formula will definitely cause bankruptcy to the punter. 18.It is trite that the burden is on Ds to satisfy this Court that the expert evidence is necessary for the trial. Though there is no express statutory provision under O 38 RHC to say that order for expert evidence will only be made for a fair trial or for saving costs, nevertheless, Order 1A, rules 1(a) (b) and (c) dictate the court’s approach:
19.Order 1A, rule 2 provides:
20.Ds have already stated in the article that if one follows the formula for past 50 games, one would have become bankrupt and would have hanged himself. This is a clear reason for the plea of justification, with concrete evidence in support of the statement. The question is whether it is necessary to call expert evidence for the plea. 21.Ds have not been able to pass the threshold in that the pleadings are not clear, as according to Ds, and as such, the proposed expert evidence simply does not assist the court to come to any resolution for the parties’ disputes. 22.For the reasons above, Ds’ application is dismissed. COSTS AND ORDER 23.As to the costs, there is no objection that the costs should follow the event (with Counsel’s Certificate). P’s costs are assessed at $70,000, including the costs reserved and for today’s hearing to be paid by Ds within 14 days from the date hereof. 24.This Court shall now make an order in terms as follows:
CASE MANAGEMENT 25.By consent, leave be granted to P to set down for trial within 42 days from the date hereof for a 3-day trial before a bilingual judge in consultation with counsel’s diaries. There shall be a PTR on a date 12 weeks before trial before the trial judge. The parties shall raise the issue of recusal, if any, and confirm the length of the trial by counsel before the trial judge. Any interlocutory applications before the PTR shall be fixed before the Registrar for argument. 26.Costs for the Case Management Conference are in the cause.
Mr Richard Leung, instructed by Henry Fok & Co, for the plaintiff Mr Raymond Ho, instructed by Hampton Winter and Glynn, for the defendants | ||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 1286/2014