Lam Man Chiu v. Hong Kong Flourtech Ltd

HCPI 1083/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 1083 OF 2016

________________________

________________________

________________________

D E C I S I O N

________________________

1.By summons dated 16 March 2017, the defendant applies to dismiss the action for want of prosecution with costs to be paid by the plaintiff to the defendant, to be taxed if not agreed, for the plaintiff’s failure to set down the case for trial pursuant to the Order of Suffiad J dated 2 March 2012 (“the Set‑down Order”). The application is supported by an affidavit of Mr Cheung Kevin (“Mr Cheung”), a partner of the defendant’s solicitors, dated 23 January 2017. Mr Cheung appeared at the hearing on behalf of the defendant.

2.The plaintiff is acting in person.  The defendant’s summons and affidavit were served on his residential address, which is his last known address, by ordinary post on 16 March 2017.  I am satisfied that these documents had been properly served on the plaintiff in accordance with Order 65, rule 5 of the Rules of the High court (“RHC’).  Mr Cheung also informed me at the hearing that the defendant is unaware of any other means to contact the plaintiff.  The plaintiff did not appear at this hearing.  However, his mother, Cheng Nog Ying (“the Mother”), turned up in court.

3.Order 34, rule 2(2) of the RHC provides that:

“Where the plaintiff does not, within the period fixed under paragraph (1), set the action down for trial, the defendant may set the action down for trial or may apply to the Court to dismiss the action for want of prosecution and, on the hearing of any such application, the Court may order the action to be dismissed accordingly or may make such order as it thinks just.”

4.This case has a long and exceptional history, which may be briefly summarized as follows:

(a) On 7 December 2006, the plaintiff issued the writ herein claiming damages for personal injuries that he suffered in an industrial accident at 1/F, 21 Dai Fu Street, Tai Po Industrial Estate, Tai Po, New Territories, Hong Kong on 20 December 2003.  At that time, the defendant was his employer.  He claimed that his left eye was injured when a metal scrap was thrown into it when he was using a portable grinder.  He claimed further that he suffered injuries to his left eye, left ear, and head as well as psychiatric illness as a result.

(b) He was legally aided from 20 December 2004 to 11 December 2007 and from 3 September 2008 to 22 September 2009.

(c) After legal aid was discharged, he was represented by the Mother as his next friend on the ground that he was a mentally incapacitated person (“MIP”) without any legal representation.

(d) The trial commenced on 2 November 2009 with 6 days reserved.  It was vacated after the court’s attention had been drawn to the requirement that a next friend must be legally represented.

(e) On 4 November 2009, the court invited the Official Solicitor to act as the plaintiff’s next friend.

(f) On 10 February 2010, Suffiad J appointed the Official Solicitor as the plaintiff’s next friend.

(g) On 15 September 2010, Fung J decided that the plaintiff was not a MIP and ordered that the Official Solicitor be discharged from his office as the next friend of the plaintiff.

(h) On 5 November 2010, Suffiad J gave leave to the plaintiff to appeal against the order of Fung J, and extended the time for appeal for a further 28 days.  However, the plaintiff did not appeal against Fung J’s order.

(i) On 17 January 2011, according to the court’s record, the Mother called the clerk of Suffiad J at about 9:15am and stated that she intended to discontinue or withdraw the action.  Accordingly, at the hearing which neither the plaintiff nor the Mother was present, Suffiad J ordered that, if in two weeks’ time, steps had not been taken by the plaintiff to discontinue/withdraw the action, the solicitors for the defendant could apply by letter to the court to refix the trial dates with estimated length of 6 days to be heard before a bilingual judge.  The plaintiff did not apply to discontinue or withdraw the action within two weeks of this court order.

(j) On 2 March 2012, Suffiad J made the Set‑down Order whereby he ordered that, firstly, leave be to the plaintiff to amend the writ by deleting the words “by Cheng Nog Ying his next friend and mother” from the title of the plaintiff within 14 days of the order; and second, 14 days after the amendment, the plaintiff applied to court to set down the hearing dates for trial.  The plaintiff and the Mother were present at that hearing.

5.Mere failure to comply with the Set‑down Order does not necessarily mean that the action should be dismissed.  On the other hand, in principle, an inference that the plaintiff has no real intention to proceed to trial will give the court jurisdiction to exercise its discretion to strike out the action as an abuse of the court’s process (Kuok Luen (Macau) Agente de Programas Televisivos Limitada & others v Tidetime Sun (Group) Ltd and another CACV 77/2011 (4 October 2011, unreported), §39).

6.At the hearing, the Mother insisted that the plaintiff has been suffering from psychiatric illness.  However, she was unable to produce any updated medical record.  Further, as mentioned, the plaintiff and the Mother had missed the opportunity given by the court to challenge Fung J’s order that the plaintiff is not a MIP.  The Mother said that she does not know where the plaintiff is now, and cannot even recall when she last saw the plaintiff.  I am unable to verify whether what she said is true.  As she has lost contact with the plaintiff on her own case, strictly speaking, she did not have the authority to represent the plaintiff.  Having said that, with Mr Cheung’s consent, I heard submissions made by the Mother.  I had also asked Mr Cheung to read out the content of his affidavit in Cantonese to the Mother so that she would be clear about the grounds of the defendant’s present application.  The Mother disagreed that the action should be dismissed.  She submitted that the court should wait until the plaintiff has recovered.  However, she was unable to say for how long the court ought to wait further.

7.While I am prepared to give due weight to the Mother’s submissions, I must consider the matter objectively, in particular, the conduct of the plaintiff (and the Mother) in the light of the procedural history mentioned above.  The undeniable fact is that, although more than 5 years have passed, the plaintiff has not complied with the Set‑down Order.  It is clear that they were aware of the Set‑down Order because they were both present at the hearing on 2 March 2012. There was no satisfactory explanation for the plaintiff’s failure to comply with the Set-down order for such a long time.  But for the fact that the defendant took out the present summons, the case would have simply remained dormant.  In essence, the Mother was inviting the court to wait for an unknown period of time, if not indefinitely, based on a reason which had not been substantiated by credible evidence.  In the circumstances, objectively speaking, I am afraid that the proper inference is that the plaintiff has no genuine intention to proceed to trial.

8.On this ground alone, I am satisfied that the plaintiff has abused the court’s process, which provides me with a sufficient ground to exercise my discretion to dismiss the action.  I also note the defendant’s evidence that it will suffer prejudice if the trial is to take place now. There are factual disputes in this case.  I agree with Mr Cheung’s general observation that, although the witnesses had made witness statements, it will be difficult for them to recollect what happened back in 2003.  Mr Cheung mentioned that Mr Tang Kim Kwong, who was an operation supervisor employed by a private investigation company, had passed away.  In Mr Tang’s witness statement, he merely produced a VCD record of surveillance on the plaintiff on 29 April 2005.  I do not believe his death would have any material impact on a trial so long as the VCD is still available.  However, I am more concerned about Mr Cheung’s evidence that the defendant’s solicitors are no longer able to contact Mr Lai Wing Nin, one of the defendant’s witnesses who had made a witness statement dated 16 June 2007.  Mr Lai was supposed to give evidence as to the availability of safety goggles and that the plaintiff was seen wearing such goggles before the accident.  The defendant’s evidence on prejudice has not been challenged.  In view of such evidence, I am satisfied that, if the case goes to trial now, the defendant will suffer material prejudice caused by the plaintiff’s delay in prosecuting these proceedings.  Hence, there is more the reason why I ought to exercise my discretion to dismiss the plaintiff’s claim.

9.In the circumstances, I shall dismiss the action with costs in terms of the defendant’s summons.  As the plaintiff was once on legal aid, to err on the safe side, I shall also order that the plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

10.I shall also direct that, when this decision is handed down, a court interpreter should be arranged to be present in order to explain this decision to the plaintiff, the Mother or both.

The Plaintiff was not represented and did not appear

Mr Kevin Cheung, instructed by Waller Ma Huang & Yeung, for the Defendant

Cheng Nog Ying (former next friend and mother of the plaintiff) in person, present