Law Ching Yu v. Cheng Kwok Wing Leo t/a Security Consultant & Engineering Co

CACV 63/2018

[2019] HKCA 156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 63 OF 2018

(ON APPEAL FROM DCEC NO 2750 OF 2015)

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IN THE MATTER OF AN APPLICATION BETWEEN

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REASONS FOR JUDGMENT

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Hon Poon JA (giving the Reasons for Judgment of the Court) :

1.This is an appeal by the applicant against the decision of Her Honour Judge Levy (“the Judge”) dated 15 February 2018 allowing the respondent’s application to amend his answer to notice filed on 5 February 2016.  After hearing the parties on 30 January 2019, we dismissed the appeal with no order as to costs between the parties and legal aid taxation for the applicant’s own costs.  These are the reasons for our judgment.

2.The background leading to the proceedings and the respondent’s application below had been fully set out in the Judge’s Decision dated 15 February 2018.  We shall not repeat it here.

3.In this appeal, the applicant did not take any issue about the amendments to the respondent’s answer that the Judge allowed.  What he complained about was the manner in which the Judge allowed the amendments.  He contended that the Judge had overstepped the line in assisting a litigant in person and acted as the respondent’s advocate when she “settled” the amendments and attached a fair copy of the amended answer to the Decision for the respondent to file and serve.  With respect, we disagree.

4.The Judge had a very difficult task at hand when she dealt with the respondent’s application to amend.  As observed by her, the bulky amendments proposed by the respondent were difficult to understand and blurred the actual grounds which he actually sought to rely on.  She then went through the proposed amendments carefully and having understood what the respondent’s case was about, allowed the amendments as she did.  In order to expedite the progress of the action, she took the additional step, though strictly not a necessary one, of attaching a fair copy of the amended answer as allowed for the respondent to file and serve.

5.In our view, what the Judge did was within the permissible bounds in managing a case involving a litigant in person.  She had not descended into the arena or acted as the respondent’s advocate as complained.  She just wanted to make sure that all the issues concerning the pleadings were resolved expeditiously so that the action could move to its next phase and then to trial eventually without any further delay.  We see no reason to interfere with the manner in which she managed the case, and have accordingly dismissed the appeal.

6.For completeness, however, we must firmly reject the respondent’s assertion that the court is under a duty to assist him, a litigant in person, in protecting his interests by curing any deficiency in his pleadings.  The court does not owe him or any litigant in person such a duty.  The duty to properly formulate his pleadings squarely rests upon the respondent.  In fact, it is ironical for the respondent to say that the court owes his such a duty when it is apparent that he has ready access to legal assistance.  He told the Judge that his pleadings were prepared by a friend of his, who is a practicing lawyer.  And his written submissions before us, written in a lawyerly manner and citing five Hong Kong and overseas cases, must have also been prepared by someone with legal training.

7.On costs inter partes, having regard to the matter in the round, it was only fair not to make any order.  So we have ordered.

8.Finally, we would observe that to alleviate any possible concerns that the applicant might have over the impartiality of the Judge, it may be appropriate for the future conduct of the action to be handled by another judge.

Mr Edward SY Fan, instructed by Lau & Chan, assigned by the Director of Legal Aid, for the applicant

The respondent, unrepresented, appeared in person