Miss Leung So Hung Siem v. Mr Carson Wen and Others

HCA 121/2017

[2018] HKCFI 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

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REASONS FOR DECISION

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1.On 26 April 2018 Master Lui ordered that the writ and the Statement of Claim should be struck out as against all defendants. The hearing on 16 July 2018 was the plaintiff’s appeal against that Order. The appeal was opposed on behalf of the 1^st, 4^th and 5^thdefendants. These are my reasons for the dismissal of the plaintiff’s appeal.

2.The plaintiff in this matter is a litigant in person making a very substantial money claim against various individuals and organizations.  A writ and a Statement of Claim have been served (on 16 January 2017) and amended (on 7 February 2017).

3.The plaintiff’s Notice of Appeal was filed on 23 May 2018 (although mis-dated 23 March 2018) and was, therefore out of time.  No explanation for the delay in making the application was in evidence.  The plaintiff, appearing in person, offered an explanation orally, that the delay was through ignorance on her part.  The explanation was, by itself, insufficient, but the factors requiring consideration where an appeal is presented out of the time include the length of the delay and the question of prejudice to the other party, as well as the potential merits of the proposed appeal.

4.The length of the delay was not great, although the plaintiff had been made aware in other circumstances of the need to abide by time limits.  There was no apparent prejudice to the defendants, and the delay was in the order of two weeks.

5.In considering the potential merits of the appeal, however, it was apparent that there were none.

6.It is trite that a pleading may be struck out as disclosing no reasonable cause of action, or as being such as may prejudice or embarrass the fair trial of the action, or as may constitute an abuse of the process of the court.  The principles are well understood, and no repetition of them is necessary here.

7.The plaintiff’s Statement of Claim is, in large measure, unintelligible.  The defendants have, on two occasions, sought further and better particulars of that pleading, but this has done little to improve the position.  The plaintiff’s claim against the 3^rd defendant was stuck out on 21 July 2017 and, on 3 July 2018, Deputy High Court Judge K Yeung SC dismissed the plaintiff’s application for leave to appeal out of time.  The learned deputy judge has set out the relevant legal principles in his decision, and has also recounted the “explanation” of her claim (against the 3^rddefendant) that was offered by the plaintiff.  A similar “explanation” (as against the 1^st, 4^th and 5^thdefendants) was given to me by the plaintiff.

8.The Statement of Claim must, however, be considered on its own terms, bearing in mind that the plaintiff has had ample opportunity to clarify any initial uncertainty through the provision of particulars.  The “particulars” however confuse, not clarify, not only as to the date on whichalleged agreements were made, but also as to the alleged capacity of parties making the alleged agreements.  On the face of the pleading it cannot be said that the pleading, taken with the particulars, discloses a cause of action. 

9.The basis for the claim, its terms, and the identification of the transactions in respect of which an entitlement on the part of the plaintiff to fees is said to arise is hopelessly inadequate.  The defendants are placed in the invidious position of being asked to defend a claim which cannot properly be understood.

10.When the evidence is considered the unsustainability of the pleaded claims becomes all the more apparent.  The written agreement signed by the 1^stdefendant (but nobody else) was signed for and on behalfof a company, not in his personal capacity.  The 4^th defendant did not existwhen it is alleged to have become a contracting party, and the 5^th defendant, who is the 1^st defendant’s assistant, is only alleged to have been peripherally involved.

11.In the circumstances I had no doubt that the plaintiff’s claim is one which should not be allowed to proceed, falling foul of all of the “prohibitions” in Order 18, rule 19.

12.There being no merit in the proposed appeal, accordingly I declined to extend time, and the appeal was dismissed.  A summary assessment of costs in favour of the defendants was made.

The plaintiff appeared in person

Mr Jonathan Chan instructed by Siao, Wen and Leung, for the 1^st, 4^th and 5^th defendants