International Social Service (Hong Kong Branch) v. Vision First Ltd

HCA 683/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 683 OF 2014

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D E C I S I O N

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Introduction

1.Three matters were listed for hearing on 20 January 2017:

(a)   pre-trial review (“the PTR”);

(b)   the defendant’s application for leave to have this action tried by a judge together with a jury (“the jury trial application”);

(c)   the plaintiff’s application to strike out parts of the defence.

This decision only deals with the jury trial application, as both the PTR and the striking out application have been adjourned to later dates for further handling.

2.The summons for the jury trial application seeks:

“[leave] to have this action [to] be tried with a jury”.

Its marginal notes refer to s 33A, High Court Ordinance (Cap 4) (“s 33A”) and RHC Ord 33 r 5, The Rules of the High Court (Cap 4A) (“Ord 33 r 5”) (there was no reference to s 15, Jury Ordinance (Cap 3) (“s 15”) in the said summons or the parties’ respective written notes for the PTR (the parties’ attention was however drawn to that aspect by the court shortly before the hearing)).

3.The former provision (s 33A) states:

“(1) Where, on the application of any party to an action the Court of First Instance is satisfied that there is in issue-

(a) a claim in respect of libel, slander, ... or

(b) any question or issue of a kind prescribed for the purposes of this paragraph by rules of court,

the action shall be tried with a jury, unless the Court is of the opinion that the trial requires any prolonged examination of documents or accounts or any scientific or local investigation which cannot conveniently be made with a jury.”

(emphasis supplied)

S 33A(2) further provides that such an application must be made not later than such time before the trial as may be prescribed by rules of court.

4.The latter provision (Ord 33 r 5) provides:

“(1) ... an application for trial with a jury under [s 33A] (the time for making which is, under that section, to be limited by rules of court) must be made before the place and mode of trial is fixed under rule 4.”

(emphasis supplied)

5.When read together with Ord 34 r 2 (setting down for trial action begun by writ) (especially Ord 34 r 2(1)), the prescribed time referred to in s 33A(2) would effectively mean, in the ordinary course of event, any time before the order for setting down for trial is being made.

6.Further to the above, s 15 provides:

“(1) Where the court or a judge orders that a cause shall be heard before a jury, the party applying for such order shall, within 7 days after the cause is set down in the general hearing list or within such further period as the court or a judge may allow, deposit with the Registrar a sum sufficient to cover the expenses of the jury.

(2)   Notwithstanding anything contained in the Rules of the High Court (Cap 4 sub. leg. A), if such deposit be not made within the time prescribed in subsection (1) the cause shall be heard by the court without a jury.”

(emphasis supplied)

Background

7.The plaintiff commenced this action in April 2014, relying on the tort of libel (statement of claim, para 5 and 7 to 27).  Some 21 allegedly defamatory articles (from August 2013 to May 2014, a period of about 8 to 9 months) are referred to in the statement of claim.

8.According to the statement of claim, the plaintiff is:

“... the Hong Kong branch of an international non-governmental organization [with a network covering] over 100 countries ... [which assists] individuals and families with personal or social problems whose solution requires [inter-country] cooperation” (para 1 thereof).

The plaintiff’s services are said therein to be “[to offer] support to refugees and new arrivals to Hong Kong with the aim of assisting them to integrate into the local community” (para 2 thereof).

9.According to the defence, the defendant’s mission is said to be to offer support to all persons (including refugees) in Hong Kong (para 6 thereof).  The defendant also alleges that the plaintiff has been acting as an agent of the Social Welfare Department (“SWD”) under a contract between the two.  The said contract is said to have delegated some of SWD’s responsibilities; namely, providing financial and other assistance to natural persons who have formally sought non-refoulement protection in Hong Kong (para 4(1) thereof).

10.Below is a summary of the relevant procedural steps between the commencement of this action and the PTR hearing:

(1)   filing of reply on 13 January 2015;

(2)   case management summons dated 16 March 2015 (hearing on 26 April 2016);

(3)   defendant’s summons to have this action be tried with a jury dated 9 December 2015;

(4)   the parties’ consent summons to have this action be tried with a jury dated 23 December 2015;

(5)   enquiry by master as regards the grounds for trying this action with a jury;

(6)   defendant’s 2^nd affirmation dated 27 January 2016 regarding the subject-matter in sub-para (5) above;

(7)   correspondence between master and the parties regarding the subject-matter in sub-para (5) above from March to April 2016;

(8)   case management conference dated 26 April 2016 where (among other directions) master:

(a)   granted leave to set down this action for trial within 42 days (Ord 34 r 2);

(b)   directed that the application for trying this action with a jury be dealt with by the trial judge at the PTR;

(9)   this action was set down for trial on 23 May 2016 in the fixture list (Ord 34 rr 3 and 8);

(10)   master observed on 25 May 2016 that an application for this action to be tried with a jury had to be made and decided before setting down (referring to Ord 33 r 5).  The parties were invited to attend court on 31 May 2016 to address on the question of jurisdiction;

(11)   the plaintiff on 26 May 2016 invited master to grant leave to set down this action for trial despite the subject-matter in sub-para (5) remains outstanding.  It was also contended that such an application having already been made (sub-para (3) above), Ord 33 r 5 should not constitute any problem; this was in effect shared (or at least not objected) by the defendant on 27 May 2016;

(12)   master directed on 31 May 2016 that the order to set down on 26 April 2016 (sub-para (8) above) was to stand.

Jury trial application

11.In view of the above summary:

(a)   the jury trial application was made within the time prescribed by Ord 33 r 5(1) (when read together with Ord 33 r 4(1)) (para 10(3) and 10(8)(a) above);

(b)   however, this action has not been ordered to be heard with a jury (s 15(1)); but it has already been set down for trial (para 10(8)(a) and (9) above).

12.The sum stated in s 15(1) (“jury deposit”) has not been deposited by the parties “within 7 days after the cause is set down” (in fact, it has not been deposited up to today).  When asked about this, the defendant explained that it had been waiting for the outcome of the jury trial application.  Further, it is contended that the time prescribed by s 15(1) has not begun to run because there is as yet no order for this action to be heard with a jury.

13.I disagree with this contention.  In order for s 15(1) to make logical sense, the order for an action to be heard with a jury must be obtained before the action is set down for trial; otherwise the Registrar will not know if the jury deposit is properly tendered.  In any event, s 15(1) expressly stipulates that the time for making the jury deposit should run from the time of setting down (para 6 above).

14.On this reading of s 15(1), when the master directed that the jury trial application be adjourned to be dealt with by the trial judge (para 10(8)(b) above), the parties herein (especially the defendant who persists in seeking a trial with a jury) ought not have invited the master to grant leave to set down this action for trial ahead of the determination of the jury trial application (para 10(7) and (8)(a) above).

15.I pause to note that such a reading of s 15(1) is also consistent with the language of s 33A(2) and Ord 33 r 4(1) when the two provisions are read together: see also the observation in George YC Mok & Co (a firm) v Trade Advisers Co Ltd and 2 Others HCA 5019/2001 (19 February 2003, para 9 to 13).

16.What has happened so far (see para 10 (especially para 10(8) and (9) above)) now puts the defendant in an unenviable position (for its own point of view, because, by the time of the PTR, the defendant was the only party seeking a trial with a jury).  This is because the right conferred by s 33A(1) (which has been described as a “qualified” right in Fiddes v Channel Four Television Corporation & Others (Practice Note) [2010] 1 WLR 2245, 2247-8) is lost once the right has not been exercised in time (Telegraph Media Group Ltd v Sarah Thornton [2011] EWCA Civ 748, para 15 and 20; albeit the observation was made in relation to the English equivalent of s 33A(2) and not s 15(1); see also s 15(2)).

17.When a party’s right to trial with a jury is lost, an application for such mode of trial then becomes a matter for the court’s discretion: s 15(1).  See the Telegraph Media Group decision, para 15 and 20.

18.The manner in which the court’s discretion ought to be exercised has been discussed in more than a few cases both locally and in England.  Insofar as they may be relevant to the jury trial application, some of the factors to be borne in mind are:

(1)   the “modern” emphasis is against trials with juries: Goldsmith & Another v Pressdram Ltd & Others [1988] 1 WLR 64, 68 and 72; Aitken v Preston & Others [1997] EMLR 415, 421; Cook v Telegraph Media Group Ltd [2011] EWHC 763 (QB), para 83; Gatley on Libel and Slander (2013) 12^th Ed, para 32.1.  At the very least, there has been a gradual development of practice of only rarely exercising the discretion to order jury trials: Armstrong v Times Newspapers Ltd & Others (No 2) [2006] 1 WLR 2462, 2466-7;

(2)   as will be elaborated in the sub-paragraphs below, the above predisposition became even more prominent since the introduction of the Civil Justice Reform in Hong Kong (just as it has since the reform in the UK CPR (Civil Procedure Rules)): Gatley, 31.67 n 311; Mark Lewis v Commissioner of Police of the Metropolis & Others [2012] EWHC 1391 (QB), para 30 (significant case management advantages);

(3)   factors militating against jury trials would include:

(a)   the efficient administration of justice. Falling within this aspect are: (1) prolonged examination of documents (which includes written directions on points of law prepared by the judge, documents which may be introduced in cross-examination and the like); (2) inconvenience (which includes probable difficulty of any issues involved (this sometimes requires the jury to return an “exam paper” type of special verdicts), physical bulk of trial documents, the need for detailed and minute examination of documents, cross-references to different documents (or bundles), examination in chief has to be verbal and so on); (3) additional length of trial and the closely related additional costs of jury trial; (4) one party acting in person, especially for trials involving areas of law which have recently been changed, or have possible rooms for development or change (such as the so-called Reynolds qualified privilege, or the defence of fair (or “honest”) comment, or the tort of misfeasance in public office);

(b)   the ability of a single judge to ask questions as and when needed and to read documents before trial and after trial hours (and the jury’s inability to do so);

(c)   the risk of excessive jury awards constituting an interference with freedom of speech;

(d)   the availability of a reasoned judgment from a single judge;

(4)   factors favouring jury trials would include:

(a)   prominent figures in public life;

(b)   questions of national interest;

(c)   actions involving issues of credibility and a party’s honour and integrity are under attack;

(d)   the wish of one or more of the parties to have a trial with a jury.

19.Judicial (or textbook) observations regarding para 18(3) above include Gatley, para 31.65, the Goldsmith decision, p 74-5, the Aitken decision, p 421, Beta Construction Ltd and Another v Channel Four Television Co Ltd and Another [1990] 1 WLR 1042, 1048, 1055, Stephen James Phillips v The Commissioner of Police of the Metropolis [2003] EWCA Civ 382, Wong Tsz Yuk v 香港警務處長鄧竟成先生及律政司司長 HCA 1699/2008 (29 April 2010), para 12-3.  Since the introduction of CPR, the predisposition against jury trial has become more apparent: Gatley, para 31.67, text to n 311, the Cook decision, para 107, Racz v Home Office [1994] 2 AC 45 and 55.

20.Judicial (or textbook) comments regarding para 18(4) above include the Aitken decision, p 422, the Fiddes decision, p 2249, Gentoo Group Ltd & Another v Stephen Hanratty [2008] EWHC 2328, para 7, Rothermere & Others v Times Newspapers Ltd and Others [1973] 1 WLR 448.

21.But the factors set out in para 18(4) above have by now been given lesser weight:

(a)   para 18(4)(a), (c) and (d) above should not be elevated to too high a level: the George YC Mok decision, para 17, Cropper v Smith (1884) 26 Ch D 700, the Mark Lewis decision, para 29-30;

(b)   para 18(4)(b) above now has less importance because judges are now independently selected and appointed: the Cook decision, para 104.  I also note that, with the prevalent use of the judicial review procedure nowadays, judges are often perceived to be well capable of adopting a stance not shared by the government.

22.Applying the above to this action, the factors which favour a jury trial are:

(1)   the defendant’s wish to do so (the plaintiff is neutral);

(2)   the contention that the jury trial application was made (though no order was obtained) within the time prescribed by s 33A(2) and Ord 33 r 5 and Ord 34 r 2.

23.As has been stated in para 21 above, the defendant’s wish carries little weight.  As regards para 22(2) above, as has been pointed out in para 14 above, the parties (including the defendant) were responsible for not obtaining the order regarding the desired mode of trial, before inviting master to grant leave to set down.  For this reason, insofar as the defendant may do so, it cannot now be heard to complain that the master’s setting down direction (and the subsequent notice to set down) has made it impossible to comply with s 15(1).

24.The defendant also argues that the plaintiff is equivalent to government because the plaintiff has been funded by government to carry out some of government’s responsibilities to support refugees who reside here (para 9 above).  Even if the defendant be correct as regards the plaintiff’s funding and duties, the dispute between the parties revolves around whether the defendant’s allegation (among other things) that government funds given to the plaintiff has been honestly and properly used by the plaintiff.  In relation to such dispute, the plaintiff’s position cannot properly be regarded as the government’s; it has never been suggested the government actually intended, or somehow connived or acquiesced in, any dishonest and/or improper use of funds by the plaintiff (assuming such misdeeds are established).  Para 21(b) above is also relevant here.  This argument therefore has no substance in the context of this action.

25.Further to the predisposition outlined above, the following features further militate against a jury trial:

(a)   as stated above, this action concerns some 21 articles. Strangely, their alleged defamatory meaning has been in only one paragraph in the statement of claim (para 30).  It is unclear (even up to the PTR hearing when the court raised query about this) whether the pleading asserts each and every of the articles bear that meaning, or that was pleaded to be the cumulative meaning, or the defamatory meaning of only some of the said articles (and if so, which).  The defence apparently does not detect the potential embarrassment of such unclear pleading, and put forth an admission (para 32);

(b)   plaintiff counsel who appeared at the PTR hearing has no previous experience in defamation trial (let alone jury trial) (though he disclosed the identity of leading counsel who has such experience);

(c)   defence counsel who appeared at the PTR (and who has no previous litigation experience either) informed that he had no instruction to conduct the trial, and was unable to inform who trial defence counsel would be.  Further, he moved back and forth between whether senior counsel would be engaged and the defendant having only limited fund to litigate;

(d)   defence counsel confirmed that the Reynolds qualified privilege would be relied upon at trial.

26.With the above in mind, it is likely the assistance with which the court will be provided will be less than when well experience counsel for both parties would appear for the parties at trial.  In relation to para 25(a) above, the plaintiff indicated that further consideration would be given to the averments in the statement of claim after the PTR hearing.

27.Finally, I also note that the plaintiff was in possession of about 1,200 pages of documents (about 770 pages of which are accounting documents).  One of main disputes is whether the plaintiff has misused public funds.  The plaintiff said the documents would negate such allegation.  Because the identity of defence trial counsel is still unknown (para 25(c) above), it is unclear if the defendant will make use of these documents at trial (and if so how). 

28.In view of the matters set out above, I am not satisfied that this is a case where the discretion should be properly exercised to direct that there be a trial with a jury.

Conclusion

29.The jury trial application is accordingly refused.

Other matters

30.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

31.I will hear the parties’ submissions on the costs of the jury trial application before deciding the costs order to be made.

Mr Vincent Chen, instructed by Fairbairn Catley Low & Kong, for the plaintiff

Mr Robert James Connelly, instructed by Ho, Tse, Wai & Partners, for the defendant