Hui Chi Fung v. Commissioner of Police

HCMP 79/2020

[2021] HKCFI 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 79 OF 2020

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BETWEEN

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Before:  Hon Wilson Chan J in Chambers

Date of Hearing:  13 April 2021

Date of Decision:  13 April 2021

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D E C I S I O N

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1.In these proceedings, the plaintiff issued an Originating Summons dated 17 January 2020 under section 41 of the High Court Ordinance, Cap 4 and Order 24, rule 7A of the Rules of the High Court, Cap 4A.

2.After a directions hearing on 9 June 2020, the defendant filed his affirmation in opposition on 14 July 2020, and the plaintiff filed his affidavit in reply on 29 July 2020.

3.On 1 February 2021, the plaintiff filed a Notice of Discontinuance to wholly discontinue the proceedings herein. 

4.As late as 7 April 2021 (less than one week before the hearing today), the plaintiff’s new solicitors, Messrs Chan & Associates, wrote to the Department of Justice acting for the defendant proposing directions for vacating the substantive hearing and the timetable for determination of the costs matter by paper disposal.  The Department of Justice replied with a revised timetable for paper disposal of costs matters on 8 April 2021.

5.In the late afternoon of 8 April 2021, the plaintiff’s solicitors suddenly informed the Department of Justice that the plaintiff would like to proceed with this case after all and would apply to withdraw the Notice of Discontinuance.

6.On 12 April 2021 (ie yesterday), the plaintiff took out the Withdrawal Summons supported by the affidavit of Chan Wan-ha Isabella, the plaintiff’s solicitor, seeking leave to withdraw his Notice of Discontinuance and to proceed with these proceedings.

7.Having heard submissions from the parties, I agree with the defendant that the Withdrawal Summons should be dismissed. 

8.First, by filing and serving the Notice of Discontinuance in February 2021, the plaintiff has evinced his unequivocal position that he had no intention to pursue the present proceedings.  The fact that leave was required under Order 21, rule 3 of the Rules of the High Court does not change this, even though the Notice of Discontinuance did not operate as discontinuance automatically. It has been held that the fact that a Notice of Discontinuance is irregular or ineffective (for failing to seek leave) does not mean that it has no effect whatsoever, and it would be an abuse of process if the plaintiff wishes to revive the claim, per Lam J (as Lam VP then was) in Supply Chain and Logistics Technology Limited v NEC Hong Kong Limited, (unreported, HCA 1939/2006, 24 November 2008) paragraphs 6 to 10.  

9.As held by Lam J, and relying on Grovit v Doctor [1997] 1 WLR 640, the abuse of process is for a party to revive the claim in question, having unequivocally intimated by filing a Notice of Discontinuance that he had no intention to pursue the claim.  The abuse does not depend on the trial date having been vacated.

10.Second, as stated at Practice Note 21/5/5 in the Hong Kong Civil Procedure 2021, “A plaintiff is not able to withdraw a notice of discontinuance and thereby revive proceedings since (1) the inherent jurisdiction of the court to set aside a notice of discontinuance is in place to protect the defendant, not the plaintiff; and (2) the defendants would be deprived of certainty.”

11.Third, before the court is to exercise its discretionary jurisdiction to allow the plaintiff to withdraw the Notice of Discontinuance (assuming that it has such jurisdiction), it has to be satisfied that there are good reasons to do so.  However, the only reasons given by the plaintiff through his solicitor’s affidavit is that he “has recently taken further legal advice” and that he “decides that there are good merits to continue this action against the defendant”.

12.I agree with the defendant that this is far from being a good reason because all along the plaintiff had been legally advised and represented (by counsel Mr Joe Chan and Ms Jessica Leung and by the plaintiff’s former solicitors, Messrs Victor Yeung & Co).

13.For the reasons stated above, I would dismiss the Withdrawal Summons. 

14.Mr Cheung, the plaintiff’s counsel, accepts that if the plaintiff fails in the Withdrawal Summons, that is the end of the matter as he puts it. 

15.Accordingly, I order as follows:

(1)  The plaintiff’s Withdrawal Summons be dismissed; and

(2)  The proceedings herein be discontinued.

Ruling on Costs

16.The only area of contention is the basis for taxation regarding the costs of the Withdrawal Summons. 

17.The defendant asks that the costs be taxed on an indemnity basis, whereas the plaintiff says that the conduct of the plaintiff cannot be said to amount to an abuse of process.

18.In my view, taking into account all the circumstances, taxation of the costs on an indemnity basis is “appropriate” in the present case.  See: Practice Note 62/App/12 of the Hong Kong Civil Procedure 2021 at page 1352.

19.I take into account that, as held in my Decision, it would be an abuse of process for a party to revive the claim, having unequivocally intimated by a Notice of Discontinuance that he had no intention to pursue the claim.  That is precisely what the plaintiff is seeking to do under the Withdrawal Summons.

20.Further, Mr Cheung relied on some alleged confusion about the status of today’s hearing.  I note that that is a submission from the Bar table only.  As noted in the Decision, the only ground put forward by the plaintiff for the change of position between 7 April and 8 April 2021 was because of the so-called “further legal advice” given recently.

21.For the above reasons, I rule that the costs of and incidental to the Withdrawal Summons should be taxed on an indemnity basis if not agreed. 

22.Accordingly, I make the order as to costs as follows:

(1)  Costs of these proceedings (including the costs reserved under the order dated 9 June 2020) be paid by the plaintiff to the defendant, to be taxed on a party and party basis if not agreed; and

(2)  Costs of and incidental to the Withdrawal Summons be paid by the plaintiff to the defendant, to be taxed on an indemnity basis if not agreed.

Mr Cheung Yiu-leung, instructed by Messrs Chan & Associates, for the plaintiff

Mr William Liu, Senior Assistant Law Officer (Civil Law) of the Department of Justice, for the defendant