Cecchetti Silvia Giada v. Tsang Tak Yip

DCCJ300 / 2015

[2018] HKDC 334

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 300 OF 2015

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Before: Deputy District Judge Kenneth K Y Lam in Chambers

Date of Hearing: 23 March 2018

Date of Decision: 23 March 2018

Date of Handing Down Reasons for Decision: 28 March 2018

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REASONS FOR DECISION

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Introduction

1.By a summons filed on 25 October 2017 (“the Summons”), the defendant applied for an order that certain parts of the plaintiff’s own witness statement dated 6 September 2015 (“P’s WS”) and the entirety of the witness statement of one “Dr Fong” dated 29 August 2015 (“F’s WS”) be struck on the ground that the same are scandalous, frivolous, vexatious or tend to prejudice, embarrass or delay the fair trial of this action or are otherwise irrelevant, oppressive, inadmissible or immaterial.

2.The plaintiff opposed the Summons. She filed an affidavit in which she suggested that those parts of P’s WS identified in the Summons (“the Subject Paragraphs”) were not in any way scandalous, frivolous or vexatious.  She further said F’s WS formed a key element of this action.

3.On 23 March 2018, after an oral hearing in which both parties made helpful submissions, I made an order in terms of paragraphs 1 & 2 of the Summons, struck out the Subject Paragraphs and F’s WS, ordered the plaintiff to pay the costs of and occasioned by the Summons including the  costs reserved on 8 November 2017 to the defendant forthwith, summarily assessed the total quantum of such costs as HKD 54,990  (collectively, “the Decision”), and indicated I would be handing down my full reasons for the Decision in writing, which I hereby do.

Factual Background

4.The plaintiff and the defendant agreed they were lovers.  The exact date of the end of their romantic relationship is in dispute.  According to the plaintiff, their relationship ended in May 2014, after an incident near a taxi stand in Causeway Bay.  According to the defendant, they broke up earlier, in or around late December 2012 or early January 2013.

5.On 21 March 2012, whilst the plaintiff and the defendant were lovers, they jointly signed, as co-purchasers, a provisional agreement for the purchase for an apartment located in Medal Court, No 38 Queen’s Road West, Hong Kong (“the Property”).  The initial deposit for the purchase was paid solely by the defendant with no contribution from the plaintiff at all, but the Property was subsequently registered in the joint names of the parties as tenants in common, with each party stated to have a 50% interest.

6.In the Statement of Claim filed by the plaintiff on 31 October 2014 (“the SoC”), the plaintiff prayed for, inter alia, a declaration that her stated 50% interest in the Property was a gift from the defendant to her.

7.On the other hand, in the Amended Defence and Counterclaim filed by the defendant on 2 August 2016 (“the AD&CC”), the defendant prayed for, inter alia, a declaration that he was the sole beneficial owner of the Property, and that the plaintiff held her stated 50% interest on trust for him.  The defendant also asked for, inter alia, an order that the plaintiff shall deliver vacant possession of the Property to him.

8.As can be seen from the above, this action is primarily about the beneficial ownership of the Property.

Legal Principles

9.Mr Samson Hung, counsel for the defendant, helpfully lodged skeleton submissions drawing my attention to various authorities, which I have considered.

10.In my judgment, the starting point should be Order 1A rule 1 of the Rules of the District Court (Cap 336H) (“the RDC”) which provides that the rules’ underlying objectives are, inter alia, to ensure that a case is dealt with as expeditiously as is reasonably practicable, to promote a sense of reasonable proportion, and to ensure that the resources of this Court are distributed fairly.  Order 1A rule 4 provides that this Court shall further the said underlying objectives by actively managing cases, including by, inter alia, deciding promptly which issues require full investigation and which issues do not, considering whether the likely benefits of taking a particular step justify the cost of taking it, and giving directions to ensure that the trial of a case proceeds quickly and efficiently.

11.Order 1B rule 1(2) empowers this Court to make orders which exclude issues from consideration, and indeed to take any other step for the purpose of managing a case.

12.As had been correctly pointed out by Deputy District Judge S H Lee in Wong Cheung Tai v Fong Yuen Fai (DCCJ 3538/2014, 1 March 2017) after examining what Registrar Lung said in Talent Weaving Dyeing & Printing Ltd v Able Billion Textiles Ltd [2013] 2 HKLRD 479, this Court does have the power to strike out an entire witness statement or parts of it in order to further the underlying objectives of the RDC, and if necessary this power can be exercised well before the commencement of the trial.  As with all powers granted to this Court, the power to strike out anything must be exercised judicially and prudently, bearing in mind the primary aim in exercising the powers of this Court must be to secure the just resolution of disputes in accordance with the substantive rights of the parties.

13.The plaintiff, acting in person, took no issue with the aforesaid principles, which are trite.

Discussion

14.It would be convenient to start with F’s WS, which was only two pages long.  All that the intended witness would like to say at the trial was that on 20December 2012, the parties allegedly attended his clinic in Central to have some tests carried out, for the purposes of “sexual health screening”.

15.It is important to note the tests were said to have been carried out close to 9 months after the parties bought the Property.  The fact that some tests were done had been admitted by the defendant in paragraph 28 of the AD&CC and is not in dispute.  Having heard oral submissions from the plaintiff, I disagreed the intended evidence on the sexual health of the parties, and in particular the sexual health of the parties close to 9 months after the parties bought the Property, would or could assist the trial judge in determining the true ownership of the Property.  Admitting the evidence would prolong the trial for no reason.  The parties should not be put on trial for their sexual health when the real issue in dispute is the ownership of the Property.  The intended evidence is irrelevant, immaterial and scandalous.  Plainly, F’s WS should be struck out and excluded from consideration at the trial, in furtherance of the RDC’s underlying objectives.

16.For the Subject Paragraphs, they contained serious allegations to the effect that the defendant (1) did not report certain matters to the local housing authorities when he should have; (2) concealed certain things from employers when he should not have; (3) liked pornographic websites; (4) had been cheating the Government of the HKSAR; (5) showed the plaintiff how he could use online software to fabricate false email messages for the plaintiff; (6) offered to hack into the email account of a Hong Kong friend of the plaintiff for the plaintiff; (7) concealed certain things from a bank when he should not have; (8) committed reckless acts when managing local corporations; (9) had numerous parallel sexual and/or romantic affairs and was thus at risk of contracting genital Herpes and/or other venereal diseases; and (10) made a booking for testing sexually transmitted diseases and said he would only have sex with the plaintiff again after he made sure in those tests he was sexually healthy (collectively, “the Serious Allegations”).

17.Having heard oral submissions from the plaintiff, I disagreed that evidence on the Serious Allegations would or could be of assistance in determining the ownership of the Property. Admitting the evidence would prolong the trial for no good reason.  At the very least, even if there could be some benefits in adducing evidence on the Serious Allegations (I could see none), those benefits would not justify the high cost of dealing with the Serious Allegations.

18.I should elaborate on the above, which I hereby do.

19.The Property was purchased in March 2012, when the parties were lovers.  There is no dispute that the purchase was made in the parties’ joint names, and that the defendant paid for everything with no contribution from the plaintiff.  The real issue in dispute is whether the plaintiff’s stated 50% interest was (1) a gift from the defendant out of love, affection and/or generosity; or (2) held on trust for the plaintiff. Only evidence relevant to this real issue should be admitted for consideration at the trial.  There must, of course, be some “background information” in the evidence so that this real issue can be decided in context, but we should not be introducing into the trial a disproportionate amount of irrelevant, peripheral or immaterial evidence, since that would distract everyone from the real issue in dispute, increase the length of the trial, make the trial less efficient and more costly, and be contrary to the RDC’s underlying objectives.

20.Mr Hung, counsel for the defendant, helpfully explained in his skeleton submissions why the Subject Paragraphs fell on the wrong side of the line and should be struck out.  The plaintiff confirmed she received one set of those submissions one day before the oral hearing on 23 March 2018.

21.At the oral hearing on 23 March 2018, the gist of the skeleton submissions lodged by Mr Hung was explained to the plaintiff by myself.  The plaintiff was then given a full opportunity to explain the relevance of the Subject Paragraphs.  I was unable to accept the explanations given by the plaintiff.

22.The plaintiff, by way of example, said the sexual health of the defendant would have a bearing on the ownership of the Property.  In my judgment, it would not.  Whether the defendant had one, two, three or four sex partner(s), and whether any of them had genital Herpes, would have no bearing on the likelihood of the defendant having made a gift to the plaintiff.  The reliability of the defendant as a factual witness does not depend on his sexual health either.

23.Similar observations can be made about the rest of the Serious Allegations.  The plaintiff’s case was that the defendant made a gift to her because he loved her.  More than sufficient minute details of their romantic relationship will be in the evidence and those had not been objected to.  The date of their first kiss, for example, will be in the evidence [HB/64 para 10].  The defendant’s objection was focused on the proposed evidence on other areas of the defendant’s life and/or what the defendant had supposedly told the plaintiff about them when they were in love.

24.The defendant’s point, which I accepted, was to the effect that even if it were true he had in the past tried very hard to dodge Hong Kong’s public housing, employment, banking, corporate governance or cybercrime regulations, that would not make the plaintiff’s case any more or any less likely to be true.  If it would not make the plaintiff’s case any more or any less likely to be true, then it is irrelevant and/or immaterial and should be excluded from consideration.

25.It is important to appreciate the plaintiff did not sue on the tort of deceit or allege fraud as part of her cause of action.  The plaintiff’s case was one of true love, affection and generosity. In this connection, we must appreciate that even the worst criminals can be very generous towards their lovers, and that even the most honest and law-abiding people can be stingy towards their lovers.  The Serious Allegations are simply neither here nor there.

26.I must of course state for the record that none of the Serious Allegations had been admitted by the defendant.

27.All things considered, in my judgment, the intended evidence in the Subject Paragraphs is plainly irrelevant, immaterial and scandalous.  The Subject Paragraphs should be struck out and their contents should be excluded from consideration at the trial, in furtherance of the underlying objectives of the RDC.

28.As to costs, I ordered costs against the plaintiff because in my judgment, for this particular matter, costs should follow the event.  Plainly, the defendant was effectively forcedto issue the Summons and to prosecute it in order to shorten the length of the trial and to minimize the costs to be incurred at or for the trial.

29.Indeed, the costs of the Summons were caused by the way the plaintiff had wanted this action to proceed.  The application was reasonable, and the defendant was successful.  I could see no reason why the defendant should not be compensated, fully and immediately, for all reasonable costs incurred in taking out and prosecuting the Summons.

30.As to assessing the quantum of costs, the plaintiff was given no less than 30 minutes to read and then comment on the 2-page statement of costs submitted by Mr Hung for summary assessment. The plaintiff said the total amount claimed was too high, but did not provide me with specific comments on specific items.  I did not blame the plaintiff as she was acting in person and understandably did not know how to scrutinize a statement of costs.  I scrutinized each sum claimed by the defendant independently as if each item is being objected to.

31.Save that two hours of solicitors’ time should be deducted (as excessive) from those claimed by the defendant in Item D1 of the statement of costs for summary assessment, I could see no good reason why I should disallow any of the other sums claimed, as they were reasonable, necessary and proper expenses for taking out and prosecuting the Summons.

32.In particular, Mr Hung had been most helpful in assisting this Court.  I should certify his attendance as necessary, reasonable and proper given (1) the seriousness of the allegations made against the defendant; (2) the issues involved; and (3) the fact that there was also a serious allegation against the solicitors’ firm representing the defendant in paragraph 5 of the plaintiff’s affidavit in opposition which I eventually did not see the need to deal with.

33.I allowed Mr Hung’s counsel fees in full, given his experience and the amount of preparatory work involved. There was a hearing bundle to read and a set of skeleton submissions to draft and lodge.

34.In my judgment, the total amount payable by the plaintiff to the defendant, assessed at HKD 54,990, cannot be said to be excessive, by reason of the matters set out above.

35.I thank Mr Hung for his able assistance.

36.As I had said at the end of the oral hearing on 23 March 2018, given the unfortunate procedural history in this matter, I do hope the parties would be setting this action down for trial as soon as possible so that there can be some finality in the dispute between the parties, and also so that the parties would be able to move on with their lives.

The plaintiff appeared in person

Mr Samson Hung, instructed by Au Yeung, Chan & Ho, for the defendant