Thapa Kamala v. Ho Lai Ming (Deputy Special Magistrate At Eastern Magistrates’ Courts)

DCCJ 1719/2019

[2021] HKDC 1362

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1719 OF 2019

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BETWEEN

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Coram: His Honour Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions: 21 & 31 May 2021, 7 & 15 June 2021, 28 July 2021, 16 August 2021 & 1 September 2021

Date of Decision: 1 November 2021

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DECISION

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THE APPLICATIONS

1.There are two applications before the court:

(1) The defendant’s summons filed on 19 July 2019 to strike out the Statement of Claim indorsed on the Writ of Summons issued on 4 April 2019 (“the Striking-out Summons”); and

(2) The plaintiff’s summons filed on 23 July 2019 for interlocutory judgment (“the Summons for Judgment”).

2.By consent, these applications are dealt with by the court on paper.

BACKGROUND

3.The whole matter stemmed from a summons (ESS 39884/2016) under which information was laid against the plaintiff for being a pedestrian who used the road negligently and endangered the safety of her own, contrary to section 48 of the Road Traffic Ordinance (Cap.374) (“the Jaywalking Summons”).

4.The trial of the Jaywalking Summons commenced on 10 January 2018 before the defendant (who was sitting as a Special Magistrate at the material time) at the Eastern Magistrates’ Courts.

5.The second day of the said trial took place on 11 January 2018. As it could not be finished in the morning, it was adjourned to 2:30pm on the same day.

6.When the trial resumed at 2:31pm, the plaintiff was absent, but her counsel was in court. The plaintiff entered the courtroom shortly thereafter. The plaintiff explained that she was late to the hearing because she was in the restroom.

7.When the case was going to be adjourned further at the end of the hearing on 11 January 2018, the defendant imposed a condition of cash bail for $100 on the plaintiff so as to compel her in attending the court hearing punctually (“the Bail Decision”).

8.The plaintiff took the view that the Bail Decision was unlawful. She therefore filed a Notice of Application for Leave to Apply for Judicial Review on 26 January 2018 (HCAL 125/2018) (“the Judicial Review Proceedings”). The application for leave was initially refused by Campbell-Moffat J. The plaintiff then appealed against such a decision. The Court of Appeal (Yuen JA and Barma JA) subsequently allowed the appeal on 22 October 2018 (CACV 118/2018) and granted leave for the plaintiff to bring the intended judicial review as they took the view that it is “at least reasonably arguable” that:

(1) the defendant had no power to impose the cash bail of $100 because of section 18 of the Magistrates Ordinance (Cap.227) and of the fact that the plaintiff was not under detention at any time prior to the imposition of bail requirement; and

(2) the effect of the cash bail was to have the plaintiff arrested.

9.Pursuant to the leave granted by the Court of Appeal, the plaintiff commenced judicial review proceedings by filing an Originating Summons on 23 October 2018.

10.Upon the joint application of the plaintiff and the Secretary for Justice by way of a Statement and draft Consent Order filed pursuant to paragraph 23 of Practice Direction SL3 on 28 March 2019, the Bail Decision was brought up and quashed by Chow J (as his Lordship then was) on 4 April 2019.

11.On the same day, the plaintiff started this action.

THE STRIKING-OUT SUMMONS

12.The defendant applied to strike out the plaintiff’s Statement of Claim on the following grounds:

(1) It discloses no reasonable cause of action; and

(2) It is an abuse of the process of the court.

13.I will deal with these grounds in turn below.

No reasonable cause of action

14.The applicable legal principles are trite. They have been summarised by Mr Recorder Manzoni SC in Polyline Development Limited (寶富來發展有限公司) (in liquidation) v Ching Lin Chuen (程練傳) & Others [2021] HKCFI 483 as follows:

“10. As a matter of general principle, it is trite that:

(1) a strikeout application will only be successful in a plain and obvious case. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.

(2) However, plain is not the same as simple, and obvious is not the same as short. If, on a careful reading of the statement of claim, however complicated, it can be seen that there is no cause of action or the claim will obviously not succeed, then it will be struck out despite the apparent complexity.

(3) There should be no trial upon affidavit and disputed facts should be taken in favour of the party sought to be struck out. Where the legal viability of a cause of action is sensitive to the facts, an order to strikeout should not be made. However, the court should remain vigilant to ensure that its processes are not abused by the prosecution of hopeless claims.

(4) The court should not decide difficult points of law in striking out proceedings.

(5) It is for the party seeking to strikeout the pleading to demonstrate that the case is a plain and obvious one in which the other party’s claim is bound to fail. However, in the context of limitation, once a limitation defence is raised, the onus is on the plaintiff to prove that the cause of action relied upon accrued within the limitation period, even in a strike out application.

11. Insofar as the application is premised upon the proposition that there is no reasonable cause of action, I must proceed on the basis that the facts alleged in the statement of claim will be established. No evidence is admissible in relation to this limb of the applications and I must address the matter simply on the basis of what is pleaded. Where a pleading is defective only in not containing particulars to which the other side is entitled the correct approach is to order particulars rather than strikeout the pleading.”

15.In relation to paragraph 10(4) quoted above, Ma J (as his Lordship then was) had given his guidance in paragraph 14(3) of his Judgment in Chuang Yue Chien Eugene v Ho Yau Kwong Kevin [2002] 4 HKC 245 as follows:

“Questions of law may be dealt with in a strike out application provided that the underlying facts are certain. It is sometimes said that the court may decline to determine difficult questions of law in a strike out application: see Hong Kong Civil Procedure 2002, Vol.1, at paragraph 18/19/4. This would therefore explain why applications such as the present one are sometimes made in the alternative under Order 14A or even Order 33, rule 3: see Hong Kong Civil Procedure 2002, Vol.1, at paragraphs 8/19/3 (at paragraph 5) and 18/19/4. In my view, questions of law can be determined in strike out applications provided that they are crucial and the court has all the relevant facts before it and that these facts are certain. There is, on the other hand, little point in dealing with any points of law, whether in strike out applications or applications under Order 14A or under Order 33, rule 3, if the relevant facts are either not before the court or are in dispute.”

16.The present action was brought pursuant to sections 125 and/or 126 of the Magistrates’ Ordinance (Cap.227) (“the MO”). They provide that:

s.125 Action against magistrate for act within his jurisdiction

In every action brought against any magistrate for any act done by him in the execution of his duty as such magistrate, with respect to any matter within his jurisdiction as such magistrate, it shall be expressly alleged that such act was done maliciously and without reasonable and probable cause; and if at the trial of any such action the plaintiff fails to prove such allegation, he shall be nonsuit or the judgment or verdict, as the case may be, shall be for the defendant.

s.126 Action for act done without or in excess of jurisdiction

(1) For any act done by a magistrate in a matter over which by law he has no jurisdiction or in which he has exceeded his jurisdiction, any person injured thereby, or by any act done under any conviction or order made or warrant issued by the magistrate in any such matter, may maintain an action against the magistrate in the same form and in the same case as he might have done before the commencement of this Ordinance, without making any allegation in his pleadings that the act complained of was done maliciously and without reasonable and probable cause:

Provided, nevertheless, that no such action shall be brought for anything done under such conviction or order until after such conviction or order has been quashed, either on appeal to the Court of Appeal or on application to the court, nor shall any such action be brought for anything done under any such warrant which has been issued by the magistrate to procure the appearance of such party, and which has been followed by a conviction or order in the same matter, until after such conviction or order has been so quashed as aforesaid; or if such last-mentioned warrant has not been followed by any such conviction or order, or if it is a warrant on an information for an alleged indictable offence, nevertheless, if a summons was issued previously to the warrant, and such summons was served on such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of the summons, in such case no such action shall be maintained against the magistrate for anything done under warrant.

(2) In any action under this section it shall be a good defence that the act complained of was not done maliciously and without reasonable and probable cause, and the onus of proving the same shall rest with the magistrate.

(3) Save under and in accordance with the provisions of this section no action shall lie in any civil court against a magistrate for any act done in a matter over which by law he has no jurisdiction or in which he has exceeded his jurisdiction.

17.Generally speaking, the effect of sections 125 and 126 of the MO is that:

(1) Where the learned Magistrate has acted within his or her jurisdiction, the claimant’s claim would be dismissed unless the claimant can prove that the learned Magistrate’s act was done maliciously and without reasonable and probable cause;

(2) Where the learned Magistrate has acted without jurisdiction or has acted in excess of his/her jurisdiction, the claimant may sue the Magistrate without pleading that the act complained of was done maliciously and without reasonable and probable cause. The onus for proving that the act was not done maliciously and without reasonable and probable cause shall be shifted to the Magistrate, and the proof of which would provide a complete defence.

18.In a gist, Mr Wong for the defendant argued that:

(1) It was within the defendant’s jurisdiction to make the Bail Decision, and the plaintiff is unable to prove malice or without reasonable cause;

(2) Even if the defendant did not actually have jurisdiction to make the Bail Decision, “the defendant needs only to prove the absence of malice as her complete defence (s.126). The action should therefore be struck out for having no reasonable cause”[1].

19.This court had been referred by counsel to a number of statutory provisions and case authorities on the question of whether the defendant had jurisdiction to impose cash bail on the plaintiff. Without disrespect to counsel, I am of the view that it is unnecessary to make a decision on such a question herein because it is not a crucial question for the purpose of this striking out application:

(1) If the defendant did not actually have jurisdiction to make the Bail Decision, I cannot see how it can possibly be argued that the plaintiff has no reasonable cause of action. Mr Wong’s argument that the defendant would have a complete defence is totally misconceived. It is a matter for the trial.

(2) If it was within the defendant’s jurisdiction to make the Bail Decision, then it is undisputed that the plaintiff has to plead in her Statement of Claim that the learned Magistrate’s act was done maliciously and without reasonable and probable cause. The plaintiff had done that with the support of a number of particulars. It is a matter for the trial to decide whether such an allegation can be established.

20.Mr Wong argued that “it is difficult to see how by ordering bail on condition of HK$100, the Defendant could ever have been said to have breached the Judicial Oath and therefore made the order in malice”[2]. In my view, this argument cannot assist the defendant. If the fact that the magistrate concerned has taken the Judicial Oath would render it impossible to establish malice against such a magistrate, then sections 125 and 126 of the MO would be made nugatory because it will never be possible to succeed in any action brought under those provisions. That cannot be the case.

21.Mr Wong further submitted that according to the plaintiff’s pleaded case, it was only around 11 days after the making of the Bail Decision that the plaintiff’s counsel handed up authorities on Magistrates’ jurisdiction to impose bail condition, and therefore the defendant “could not have had any inkling of knowledge or doubt that the decision may have been incorrect until after the decision”[3]. That may be so. However, taking the defendant’s case to the highest, she only has a strong defence, but I cannot agree with Mr Wong’s submission that “the defendant will inevitably succeed on the defence of absence of malice”[4].

22.I therefore come to the view that this ground must fail.

23.At the end of the argument in support of this ground, the defendant’s counsel had made certain observations on the matters pleaded in the Statement of Claim. It seems he was suggesting that the Statement of Claim was lacking of particulars. She also appeared to be arguing that certain damages are not recoverable. She invited the court to order the plaintiff in providing further and better particulars if the Statement of Claim is not struck out.

24.I do not think it is appropriate for me to make any order as proposed even if the case is not struck out, as the defendant has not framed her request properly for the court’s consideration. It is up to the defendant to make another application pursuant to Order 18 rule 12 of the Rules of the District Court if required.

Abuse of process

25.The defendant has made the following submissions when arguing that the Statement of Claim should be struck out by reason of abuse of process of the court:

(1) The threat of litigation against Judges would undermine judicial independence (“the Judicial Independence/Immunity Ground”);

(2) The plaintiff had chosen to sue the defendant personally rather than challenging the Bail Decision by other means (“the Personal Action Ground”)

(3) The plaintiff has sought to relitigate the same issue by commencing the action herein (“the Res Judicata Ground”);

(4) By the commencement of this action, the plaintiff has sought to impose a threat on the defendant so that she would recuse herself as the presiding judicial officer at the trial of the Jaywalking Summons (“the Recusal Ground”).

The Judicial Independence/Immunity Ground

26.In his submissions, Mr Wong had emphasized the importance of judicial immunity and drawn the court’s attention to Article 85 of the Basic Law which provides that:

“The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions.”

27.Mr Wong has also referred this court to the case of Choy Bing Wing v Chief Justice and Kelvin Browne (A Magistrate) (HCA 125/2005, unreported, 10 August 2005) and Ma Kwai Chun v Leong Siu Chung & Another (CACV 227/2002, unreported, 5 August 2002).

28.In Choy Bing Wing (supra), Suffiad J held that:

“Secondly, even if there was some defect in the Warrant or in the process of its issuance, Article 85 of the Basic Law provides absolute immunity in favour of the 2^nd defendant as a magistrate and the action against him by the plaintiff cannot be maintained but must be struck out.” (at paragraph 24)

29.In Ma Kwai Chun (supra), the plaintiff therein sued Leong CJHC and Master Lung (as he then was). The action was struck out by Registrar C Chan. The plaintiff’s appeal was dismissed by Yeung J (as his Lordship then was). Upon the plaintiff’s further appeal to the Court of Appeal, Woo JA (as his Lordship then was) quoted what Yeung J stated as follows[5]:

“…Needless to say, a judge must deal with a case without fear or favour. At the same time, a judge is protected by the law so that, in the course of dealing with a case, he is immune from any consequence which is prejudicial to him. Without such protection, a judge can hardly deal with a case without fear or favour. And it is for this reason that article 85 of the Basic Law expressly provides that a judge is free from any interference in hearing and determining a case and is immune from legal action in performing his judicial functions. This protection must be an absolute one, otherwise it will be extremely difficult for a judge to perform his functions.”

30.Woo JA continued in paragraph 10 of his Judgment:

“[…] Article 85 of the Basic Law provides an absolute protection for acts done by judicial officers in the administration of justice, in order to ensure that these officers deal with cases without bias, favour or fear and to effectively prevent litigants from commencing proceedings against these officers personally, such as what Madam Ma is seeking to do now.”

31.Despite what were said in these authorities, Mr Wong submitted that the defendant is not arguing that she enjoys absolute immunity from suit. He cited the case Park Young Sook v Sharon Melloy (HCA 763/2010, unreported, 30 June 2010), in which it was held by To J that Article 85 of the Basic Law is “amplified by the detailed provisions in section 71 of the District Court Ordinance”[6] (“DCO”) which provides that:

“(1) No action shall be brought against a judge for any act done by him in the execution of his duty until the act done by him has been quashed on appeal to the Court of Appeal or by the Court.

(2) No such action shall be brought in respect of any matter within the jurisdiction of the judge unless it is expressly alleged that such act was done maliciously and without reasonable and probable cause and the burden of proof that the act was so done shall rest with the plaintiff in such action.

(3) In any such action in respect of any matter over which by law the judge had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment, it shall be a good defence that the act complained of was not done maliciously and without reasonable or probable cause and the burden of proof that the act was not so done shall rest with the judge.

(4) Save under and in accordance with this section no action shall lie in any civil court against a judge for any act done in a matter over which by law he had no jurisdiction or in which he exceeded the jurisdiction conferred on him by this Ordinance or by any other enactment.”

32.It can be seen that the effect of section 71 of the DCO is more or less the same as sections 125 and 126 of the MO. Therefore, the reasoning of To J should be equally applicable to sections 125 and 126 of the MO.

33.On my part, I have reservation on the view that Article 85 of the Basic Law is amplified by section 71 of the DCO or sections 125 and 126 of the MO, because Article 85 is unqualified. As Woo JA put it, “Article 85 of the Basic Law provides an absolute protection for acts done by judicial officers in the administration of justice”. It does not distinguish between a decision which is within the Judge/Judicial Officer’s jurisdiction and a decision which the Judge/Judicial Officer has no jurisdiction to make or is made in excess of his/her jurisdiction. It also does not provide that an action may be maintained against a Judge or Judicial Officer so long as there is malice on his/her part. The only condition for such a protection is that the Judge or Judicial Officer is performing his/her judicial functions. Hence, I am of the view that, on the face of it, there is inconsistency between Article 85 and section 71 of the DCO.

34.Because of the aforesaid reservation, I have sought parties’ further assistance on the question of constitutionality of sections 125 and 126 of the MO. In reply, both of them agreed that there is no inconsistency as such. Mr Wong further emphasized that the defendant has never argued that the aforesaid statutory provisions are unconstitutional.

35.Because of such a stance, I would proceed herein on the assumption that the aforesaid provisions are constitutional, and that they have amplified Article 85 of the Basic Law as explained in Park Young Sook.

36.In my view, once we are going along that route, we would have to consider the effect and operation of sections 125 and 126 of the MO. If those provisions allow an action to be brought against a Magistrate, then I think the defendant’s argument on “judicial independence” cannot stand. As I have held above that the plaintiff has a reasonable cause of action pursuant to the said provisions, I am not prepared to strike the plaintiff’s claim out on the ground that this action would threaten the independence of the Judiciary.

The Personal Action Ground

37.The defendant alleged that while the plaintiff has had other avenues to challenge the Bail Decision, she has chosen to attack the defendant with this action. She submitted that this is an inappropriate forum, and that the plaintiff should not have put the defendant “on trial by impugning her character”[7].

38.With respect, this argument is bound to fail. As discussed, sections 125 and 126 of the MO expressly permit actions to be brought against magistrates. That being the case, subject to my further discussion on res judicata and judicial immunity below, I cannot see how it can be said that the plaintiff’s election to go after the defendant by virtue of a personal action is an abuse of process of the court.

The Res Judicata Ground

39.Under this ground, the defendant argued that the plaintiff should have sought damages in the Judicial Review Proceedings.

40.I have already set out some brief background of the said Judicial Review Proceedings at the beginning of this Decision and I shall not repeat those matters here. However, for the purpose of dealing with the Res Judicata Ground, I need to supplement the above background by the followings:

(1) When the plaintiff herein first applied for leave to apply for judicial review, the defendant herein was named as a Putative Respondent therein;

(2) On 15 June 2018, the Department of Justice wrote to the Registrar of Civil Appeals and informed him that the defendant herein would take a neutral stance in the plaintiff’s pending appeal to the Court of Appeal against the Court of First Instance’s refusal to grant leave to apply for judicial review (CACV 118/2018). In the same letter, the Department of Justice drew the court’s attention to paragraph 4 of Practice Direction SL3, and pointed out that “the proper respondent to an application for judicial review, when the Court’s supervisory jurisdiction over criminal proceedings in an inferior Court is invoked, is the other party to the proceedings in the inferior Court, and not the inferior Court itself”;

(3) Referring to the said letter of the Department of Justice, the Registrar of Civil Appeals, by directions dated 27 June 2018, drew the plaintiff’s attention to the said paragraph 4 of Practice Direction SL3, and urged the plaintiff “to take whatever appropriate action in rectifying the matter as soon as possible, if so advised”;

(4) As a result, the plaintiff herein filed a summons on 6 July 2018 by which she sought leave to amend the name of the Putative Respondent in CACV 118/2018 to “Secretary for Justice”;

(5) By two letters dated 6 August 2018 and 7 August 2018 respectively, the Department of Justice informed the court that both the defendant herein and the Secretary for Justice had no objection to the substitution of Putative Respondent in the Judicial Review Proceedings;

(6) On the basis of such consent, Yuen JA made an order in terms of the said summons.

41.With the above background, I agree with the plaintiff that since the defendant herein was not a proper party to be named as Putative Respondent in the Judicial Review Proceedings (such that the defendant was substituted by the Secretary for Justice), the plaintiff could not have claimed damages against the defendant personally therein. As a result, there is no abuse of process on the part of the plaintiff in instituting another action against the defendant personally herein.

42.Furthermore, it is stipulated in section 126 of the MO that in a case where the magistrate had no jurisdiction to do an act or exceeded his jurisdiction while doing the act, no action shall be brought against such a magistrate for such act until after the order concerned had been quashed. In other words, the plaintiff could not have included any claim for damages in the Judicial Review Proceedings even if the defendant herein was a proper party thereto.

43.Mr Wong has drawn this court’s attention to the case of Keen Lloyd Holdings Ltd v Commissioner of Customs and Excise [2016] 2 HKLRD 1372 in an attempt to demonstrate that where there is a mix of public law issues and a civil claim, a judicial review can be converted into a writ action for the purpose of assessing damages. I agree with Mr Leung’s submission that this authority does not assist the defendant because while the Commissioner of Customs and Excise was a proper party to be sued in both the judicial review case and the civil action in the Keen Lloyd case, as aforesaid, it was agreed by the defendant herein that she was not a proper party in the Judicial Review Proceedings and as a result she was substituted by the Secretary for Justice. Therefore, the procedure adopted in Keen Lloyd could not be followed in the present scenario.

44.This ground therefore fails.

The Recusal Ground

45.The defendant further argued that the plaintiff’s motive of commencing this action was to provide a ground in support of the plaintiff’s application for the defendant to recuse herself from the trial of the Jaywalking Summons. The plaintiff had indeed made two such applications. It was said that when the first recusal application was made on 22 January 2018, the plaintiff threatened that she would start a civil action against the defendant, and that before the second recusal application was made on 12 April 2019, the plaintiff “materialized” the threat by actually commencing this action on 4 April 2019. It was therefore submitted that this action was only made use of to apply pressure on the defendant in recusing herself.

46.It is trite that the court indeed has jurisdiction to strike out a claim if it is satisfied that the claim is commenced out of improper motive. In Yifung Properties Ltd & Others v Manchester Securities Corp & Others (HCA 1341/2014 and HCA 1359/2014, unreported, 19 October 2015), Au-Yeung J stated that:

“12. A proceeding is ‘frivolous’ when it is not capable of reasoned argument, without foundation or where it cannot possibly succeed: Hong Kong Civil Procedure 2015, §18/19/8. Where a litigant brings a claim knowing that there is no substance in it or that it is bound to fail, or if the claim is on its face so manifestly misconceived that it can have no prospect of success, it may be deemed frivolous and an abuse of process: see ET Marler Ltd v Robertson [1974] ICR 72 at 76D-E. The court should see what the party in question knew or ought to have known if he had gone about the matter seriously: Cartiers Superfoods Ltd v Laws [1978] IRLR 315 at 317, §18.

13. A proceeding is ‘vexatious’ when it is oppressive and/or lacks bona fides: Hong Kong Civil Procedure 2015, §18/19/8. Vexatiousness implies the doing of something over and above that which is necessary for the conduct of the litigation, and suggests the existence of some spite, or desire to harass the other side to the litigation, or some other improper motive: Cartiers Superfoods, §16.

14. To decide that the litigant has been frivolous or vexatious and thus abused the process of the court is a serious finding to make, for it will generally involve bad faith on his part and one would expect the discretion to be sparingly exercised: ET Marler Ltd v Robertson [1974] ICR 72 at 76G-H.”

47.Be that as it may, I am afraid I cannot accept the defendant’s submissions. First of all, as pointed out by Mr Leung for the plaintiff, it is factually incorrect for Mr Wong to submit that “the second recusal application was made wholly on the basis that the Special Magistrate had become a defendant”[8]. Altogether 10 grounds had been put forward in support of the application.

48.Further, I am mindful that it was indeed the plaintiff’s right to make an application for recusal as soon as she took the view that there was any valid ground in support. I also notice that if the plaintiff was minded to sue the defendant pursuant to section 126 of the MO, there is a limitation period of 6 months as provided by section 131 of the MO. Therefore, the plaintiff cannot be blamed for taking prompt actions on both fronts. I do not think I can draw an inference that the plaintiff had no genuine intention in pursuing a civil action against the defendant and that her only motive was to create a ground in support of her recusal application.

49.I should also add that my conclusion above is not affected by the fact that the plaintiff’s counsel had referred expressly to this action when he made the second application for recusal on 12 April 2019. By the time of the said application, this action had been commenced, and it was a fact that the defendant was made a party to this action. In my view, it is natural for the plaintiff’s counsel to refer to such a fact in support of the recusal application.

50.This ground is therefore rejected.

Conclusion

51.For the above reasons, the defendant’s Striking-out Summons should be dismissed.

THE SUMMONS FOR JUDGMENT

52.The relevant background leading to the taking out of the Summons for Judgment is as follows:

4 April 2019		Writ of Summons (with the Statement of Claim endorsed)
23 April 2019		Acknowledgement of service of the Writ of Summons
22 May 2019		By consent, the time for the defendant to file her Defence was extended to 17 June 2019
20 June 2019		By consent, it was ordered that unless the Defendant filed her Defence by 4pm on 22 July 2019, the defendant shall be debarred from doing so, and the plaintiff would be at liberty to apply for default judgment (“the Unless Order”)
19 July 2019		The defendant filed the Striking-out Summons
23 July 2019		The plaintiff filed the Summons for Judgment, and applied for interlocutory judgment with damages to be assessed

53.The plaintiff’s argument made in support of the Summons for Judgment may be summarised as follows:

(1) The defendant had breached the Unless Order;

(2) The defendant has not made any proper application for relief from sanction pursuant to Order 2 rule 4 of the RDC;

(3) The taking out of the Striking-out Summons should not be regarded as an application for relief from sanction.

54.In opposition to the Summons for Judgment, Mr Wong for the defendant argued that:

(1) Prior to the deadline set by the Unless Order, the defendant had indicated by virtue of her application for striking out that the plaintiff’s claim herein disclosed no reasonable cause of action, is frivolous and vexatious and is otherwise an abuse of the process of the court;

(2) Given such a stance, the filing of a Defence would undermine the defendant’s position and would have allowed the plaintiff to achieve her objective in threatening the defendant;

(3) When the court considers whether it would exercise its discretion in entering judgment, it should consider the strength of the claim which is challenged by the virtue of the Striking-out Summons;

(4) There was no intentional and contumelious conduct on the part of the defendant. She only “took a principled approach to protect the integrity of an independent judiciary”[9].

55.With greatest respect to Mr Wong, it is not up to the defendant or her legal advisors to decide whether the Unless Order should be complied with (unless the defendant has decided not to contest this action). If for any reason they considered it inappropriate to file a Defence before the result of the Striking-out Summons is known, the defendant should have sought the consent of the plaintiff and applied to the court for the staying of the Unless Oder pending the determination of the Striking-out Summons. They only have themselves to blame if they fail to get any court order and protect the defendant’s position.

56.Furthermore, given this court’s refusal of the defendant’s grounds raised in support of the Striking-out Summons, it is no longer open to the defendant to argue that the plaintiff’s action herein is liable to be struck out.

57.Moreover, it seems from Mr Wong’s explanation (that the defendant had taken a “principled approach”) that it was a deliberate decision on the part of the defendant (and her legal team) not to file any Defence. That being the case, the defendant’s breach of the Unless Order cannot be anything other than intentional and contumelious.

58.Lastly, Mr Wong argued that:

“As also pointed out in the Original Submissions, the Statement of Claim is not capable of bearing a judgment in the plaintiff’s favour. At most, the failure to strike out the plaintiff’s claim should result in proceeding to trial following further case management and not judgment.”[10]

59.In the light of the sanction imposed by the Unless Order, the defendant shall not be able to file any Defence in the present action. Pursuant to Order 19 rule 3 of the RDC, where the plaintiff’s claim against a defendant is for unliquidated damages, the plaintiff may enter interlocutory judgment against the defendant for damages to be assessed if the time for the filing of Defence has expired. It is indeed a category of application which this court has to handle day-in-day-out. All the court has to be satisfied when faced with such kind of application is that, assuming the plaintiff is able to prove all the pleaded facts, he would have a valid claim against the defendant. Hence, with respect, I do not understand why the plaintiff should be required to prove her case at a trial as proposed by Mr Wong.

60.As aforesaid, the defendant has never made any application for relief from sanction. Neither did Mr Wong for the defendant indicate that such an application would be made. Indeed, the Summons for Judgment was filed by the plaintiff back in July 2019. Yet, the defendant had not seen fit to file any summons under Order 2 rule 4 of the RDC in the last 2 years asking for relief from the sanction imposed by the Unless Order.

61.I have considered whether I should follow the approach of Mr Recorder Stewart Wong SC in Lau Ping v Lim Gary Radford [2021] HKCFI 1137 in which his Lordship accepted an undertaking given on behalf of the defendant to issue a summons within 7 days to apply for relief from sanction formally rather than entering an interlocutory judgment right away. I am of the view that I should not give any further chance for the defendant to make such an application because:

(1) The defendant has not even asked for such a chance;

(2) In Lau Ping, the learned Recorder took the view that it was at least plausible for relief from sanction for breach of the unless order therein to be granted to the defendant. However, I do not think we have the same situation here. As I said, I am of the view that the defendant’s breach of the Unless Order herein was intentional and contumelious;

(3) Further, as aforesaid, the defendant did not see fit to make such an application in the last 2 years.

62.Having taken the above matters into account, I am of the view that I should accede to the request of the plaintiff in granting her judgment in terms of the Summons for Judgment.

ORDER

63.By reasons of the aforesaid, I order that:

(1) The Striking-out Summons be dismissed;

(2) Interlocutory judgment be entered against the defendant with damages to be assessed.

COSTS

64.I make a costs order nisi that:

(1) The defendant shall bear the plaintiff’s costs of the Striking-out Summons and the Summons for Judgment, with certificate for counsel, to be taxed if not agreed;

(2) Costs on liability of this action up to the date of this Decision be to the plaintiff, to be taxed if not agreed.

65.The above order nisi shall become absolute in the absence of application to vary (which shall be made by letter, if any) within 14 days hereof.

Mr Kelvin Leung, instructed by How & Co., for the plaintiff

Mr Albert N B Wong, instructed by Department of Justice, for the defendant