Goodwell Property Management Ltd v. Lee Hung Sing and Others

DCCJ 1886/2016

[2019] HKDC 42

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1886 OF 2016

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Before: Deputy District Judge K C Chan in Chambers (Open to Public)

Dates of Hearing and Decision: 9 January 2019

Date of Reasons for Decision: 14 January 2019

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REASONS FOR DECISION

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1.The plaintiff by summons dated 12 December 2018 sought leave to appeal against such part of my decision handed down on 29 November 2018 (“the Decision”)

(a)  granting leave to the 1^st, 2^nd and 4^th defendants to amend paragraph 3 of their Amended Defence containing proposed paragraph 3(ii) and 3(iii) but disallowing inclusion of other proposed sub-paragraphs (“Leave to Amend”); and

(b)  refusing to expunge the 2^nd and 5^th rows of the table in the respective paragraph 74 in the witness statements of the 1^st, 2^nd and 4^th defendants (“Refusal to Expunge”); and

(c)  the costs orders consequential thereon.

2.After hearing the parties I refused leave to appeal with costs then summarily assessed with reasons to be given later.  This I now do.

3.The background, the details pertaining to the applications leading to the above orders and the reasons for my decisions are set out the Decision and I will not repeat them here.  For ease of reference, I use here the same abbreviations used in the Decision.

Legal principles relevant to granting of leave to appeal

4.Section 63A(2) of the District Court Ordinance Cap 336 provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.

5.It is trite that a reasonable prospect of success involves the notion that the prospect of succeeding must be reasonable and therefore more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, KNM v HTF (unrep. HCMP 288/2011) and Hong Kong Civil Procedure 2017 §59/2A/4.

6.As the decisions intended to be appealed against are exercises of discretion, an appeal will not be entertained unless it is shown that the discretion was exercised under a mistake of law, a disregard of principle, misapprehension as to the material facts or that the conclusion reached was “outside the generous ambit within which a reasonable disagreement is possible”. (§59/0/54 Hong Kong Civil Procedure 2019).

The proposed grounds of appeal

7.Proposed grounds 1 to 3 in the plaintiff’s draft Notice of Appeal relate to the Leave to Amend, while ground 4 relates to the Refusal to Expunge.

Proposed Ground 1

8.This ground states that I erred in holding that the allowed amendments were not “rumours or suspicions” under the exclusionary principles laid down in Scott v Sampson (1882) 8 QBD 491, and in so ruling, I have failed to consider or sufficiently consider that

(a)  “the sources of the said reports were unclear and that the said reports only indirectly tend to affect the plaintiff’s reputation and hence irrelevant to the issue in this case”, and

(b)  “the said reports at most tend to show that the Plaintiff ought not to have a good reputation, which if allowed, would throw the difficulty of showing a uniform propriety of conduct, which in turn would give rise to interminable issues that had only a remote bearing on the question in dispute”.

9.In paragraph 3 of the Re-Amended Defence filed pursuant to and after the Leave to Amend was granted, the two estates the management of which the plaintiff was removed from[1] are now identified as Ronsdale Garden (龍華花園) and One Beacon Hill (畢架山一號) and the respective newspaper reports are particularized being both published by the Apple Daily respectively on 25 September 2010 (“the Ronsdale Article”) and 29 September 2010 (“the One Beacon Article”).

10.The said newspaper reports have since been disclosed by the defendants.

11.In Mr Chen’s written submissions on behalf of the plaintiff, as I understand them, he complains that

(a)  The Ronsdale Article included not only report about the plaintiff’s removal from the management of Ronsdale Garden, but also included mentions of other estates which were couched in language quite unfair to the plaintiff;

(b)  The source of the Ronsdale Article was not specified and was unknown;

(c)  The Ronsdale Article purportedly reported under a section entitled “管理衰過公屋” the complaint by one anomalous resident about the plaintiff’s management of Ronsdale Garden.

(d)  Regarding the One Beacon Article, it seems the only source was one Madam Szeto who was the secretary of the Owners’ Committee of One Beacon Hill, and therefore it cannot be satisfactorily proved that the actual reason for the removal of the plaintiff was because the owners were “dissatisfied”.

He therefore submits that these are “rumours or suspicions” within the exclusionary principles laid down in Scott v Sampson.

12.I have made it clear in the Decision that I grant leave to amend to include the proposed sub-paragraphs 3(ii) and 3(iii) as the plaintiff’s removals did happen and were not matters of rumours and suspicion and that I consider the actual votes by the requisite majority of the owners of these two estates resolving and leading to the removals of the plaintiff were concerted acts by the owners, which very arguably, amounting to expressions by a relevant sector of the public of their estimations of the plaintiff they held in their opinion.  Therefore, they are not excluded by the principles in Scott v Sampson and are also within the Burstein case.  I have not given leave to amend to introduce any allegations of any purported “bad or poor services” or the like on the part of the plaintiff behind the two removals, or in respect of other estates managed by the plaintiff.

13.If indeed there are such matters (apart from the relevant and admissible parts) contained in the Ronsdale Article and the One Beacon Article that are not admissible or on topics that are not pleaded, those are matters that should be addressed at trial or in appropriate applications as may be advised. Likewise, the question of the reliability of the source of information of the matters reported in the said articles, or weight to be given to them, should be addressed at trial.

14.While I agree with Mr Chen that the reasons for the removals of the plaintiff in these two estates are very relevant, in that they would throw light on what sort and the nature of the estimations the owners of these two estates have held in their opinion regarding the plaintiff.  However and importantly, in my view it should be clearly distinguished and borne in mind that it was the owners’ reasons as expressed by them when they casted their votes to remove the plaintiff that is in issue; as opposed to whether there were actually such instances of bad or poor services (or like matters) on the part of the plaintiff or whether those instances justified the removals or, more generally, whether the owners’ such reasons had any objectively sound basis.  As the key issue is what the actual reputation of the plaintiff was, any investigations into and adjudication of the soundness of the owners’ reasons would be attempts to try to prove the reputation the plaintiff ought to have.  As such, these attempts would exactly contravene one of the rationales behind the Scott v Sampson principles.

15.In sum, the relevant principles are sufficiently clear and their application to the present facts equally so.  I do not think I have erred as now complained by the plaintiff.  I take the view that there is no reasonable prospect of success for proposed Ground 1.

Proposed Ground 2

16.In gist, in this ground, the plaintiff states that I have not sufficiently considered the risk of introducing roving enquiries and “trials within a trial” by giving the Leave to Amend particularly when the defendants aver in the Re-amended paragraph 3(i) and (ii) that the plaintiff was removed in Ronsdale Garden “because of its poor management services” and removed in One Beacon Hill because the owners “were dissatisfied with the management services”.

17.The plaintiff’s submission is that in order to counter such allegations, there need to be investigations and adjudications of the incidents and allegations “of its poor management services” and of the dissatisfaction of the owners of One Beacon Hill over its management services.

18.I have explained in paragraphs 14 above that, in my view, the truth or otherwise of the various instances and allegations of “bad or services” (or “dissatisfaction”) or the like behind the removals are irrelevant and investigations into and adjudications upon them therefore unnecessary.  As said, in my view the relevant issue is what the reasons for the two removals were as expressed by the owners of Ronsdale Garden and One Beacon Hill.  So understood and focused, I take the view that the further proceedings to resolve this issue could readily be managed by the case management powers of the court.  It also seems to me that this matter might be readily proved, among others, by relevant documentary evidence such as the minutes of the meetings of the owners, the contemporaneous documents circulated among the owners of these two estates and their communications with the plaintiff around the time of the votes leading to the two removals.

19.Thus, I remain of the view that the risk of roving enquires and “trials within a trial” is minor.

20.In the result, I conclude that there is no reasonable prospect of success for the proposed Ground 2.

Proposed Ground 3

21.This proposed ground states that I erred as the allegations made in the allowed amendments are “particular acts of misconduct on the part of the plaintiff tending to show his [sic] character and disposition and not general evidence of bad reputation or bad character”.  There is no basis stated therein as to why the plaintiff says I erred.

22.This is one of the arguments made in the hearing of the application to amend.  I have dealt with it in my Decision and found the exclusion under Scott v Sampson not applicable to the matters pleaded under the allowed amendments.

23.As explained again above, the removals of the plaintiff in the two estates, arguably, were expressions by these owners of their estimations of the plaintiff in their opinion.  These therefore were acts of such owners and not acts of the plaintiff.

24.I take the view that there is no reasonable prospect of success for this ground.

Proposed Ground 4

25.This proposed ground is raised in respect of the Refusal to Expunge.  It is stated in the draft Notice of Appeal to be premised on the success of proposed Grounds 1 to 3.

26.As I conclude that there is no reasonable prospect of success for the other 3 proposed grounds, I likewise think there is no such prospect on this ground.

27.The plaintiff has not advocated that there is some other reason in the interests of justice why the appeal should be heard.

28.For the above reasons, I dismissed the plaintiff’s application for leave to appeal with costs.

Mr Vincent S K Chen, instructed by Chung & Kwan, for the plaintiff

Mr Taylor L K Li, instructed by JCC Cheung & Co, for the 1^st, 2^nd and 4^th defendants