Poon Wong Yee See v. Lo Sau Woon Diana

HCA 1905/2020

[2021] HKCFI 3410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1905 OF 2020

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BETWEEN

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Before:  Hon Ng J in Chambers (Open to public)

Date of Hearing:  11 November 2021

Date of Decision:  11 November 2021

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D E C I S I O N

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1.This is a defamation case. The Plaintiff claims the Defendant has made untrue defamatory statements about her from June/July 2020. The Writ of Summons was issued on 11 November 2020. The parties have filed a Statement of Claim, Defence and Reply. As far as the Reply is concerned, it was filed on 16 February 2021. The Defendant made a request for Further and Better Particulars of the Statement of Claim on 12 March 2021 concerning the natural and ordinary meaning of the alleged defamatory statements pleaded in paragraphs 5 and 6 of the Statement of Claim. The Plaintiff has provided the Particulars on 23 March 2021 (“FNBP”).

2.On 16 July 2021, Master Kent Yee allowed the Defendant’s application by summons dated 5 July 2021 (“Summons”)  for leave to amend her Defence and ordered costs of and occasioned by the Amended Defence (including the costs of the application)  be to the Plaintiff in any event, to be taxed if not agreed (“Costs Order”).  In the Summons, the Defendant actually asked for costs to be borne by the Plaintiff. 

3.This is the Defendant’s appeal against the Costs Order. 

4.To put this appeal in its proper perspective, according to the learned Master’s endorsement at the back of the Summons, the hearing was attended by a Ms T Li (presumably a solicitor)  for the Defendant and a Ms S Tsang (a trainee)  for the Plaintiff.  The hearing took about 5 minutes.  In Mr Bowers’ skeleton, it is stated that the Plaintiff did not object to the granting of leave to amend the Defence - she only objected to the costs order sought in the Summons.  Mr Deng does not dispute that.

5.In Chen Ningning v King & Wood (a firm) unrep, HCMP 163 of 2012, 16 April 2020, K Yeung J cited with approval the following approach to appeal against a master’s costs Order as follows:

“59.  In Hoddle v CCF Construction Ltd [1992] 2 All ER 550, Morland J observed at 550h-551b observed [sic] that:

‘In my judgment it would be highly undesirable as a matter of general principle that a judge in the position that I am in today should intervene and make different orders as to costs from that made by a master, unless it can be shown by the appellant that the master demonstrably erred in the exercise of his discretion in the order that he made. If it can be shown that the master took into account matters that he should not have taken into account or failed to take into account matters that he should have taken into account, in those circumstances the judge in chambers would be entitled to vary the order made by the master, but in my judgment it would not be in the interests of justice if judges in chambers entered into detailed examination of all the matters that were before the master in order to decide whether they would have come to the same decision as the master. Generally speaking, in my judgment, judges in chambers should not allow appeals against costs orders by masters, unless it can be shown that the order made was unreasonable or erred in law or, as I have indicated, either failed to take into account proper matters or took into account matters that should not have been taken into account.’ (emphasis added)

60.  Hoddle was applied in Man Fong Hang v Man Ping Nam and Ors, HCA 7935/1998 (unrep, 26 September 2002)  per Deputy Judge A Cheung (as he then was)  at §16.”

6.At paragraph 3(8)  of Mr Deng’s skeleton, he submits that Master Yee awarded the usual costs order to the Plaintiff for the following reasons:

“(a)  it is the usual costs order in an Order 20 rule 8 of the Rules of the High Court (Cap. 4A)  (‘RHC’)  [DA/1], which provides that the Court may order a pleading to be amended on such terms as to costs or otherwise as may be just and in such manner as it may direct (‘Usual Cost Order Reason’); and

(b)  D had a duty to plead her own case and the fact that P did not plead her case properly was not a reason to depart from the usual costs order (‘Duty to Plead Ordinary Meaning Reason’).”

7.As stated in the letter dated 29 October 2021 from Bowers to Liu Chan & Lam, Mr Bowers appeared to accept the learned Master had made it clear to the parties that he was making the standard costs order.  However, it is unclear from the materials before this court what other considerations the learned Master had or had not taken into account in making the Costs Order - the Defendant has not produced the transcript or her solicitors’ note of the hearing. 

8.At paragraph 8 of his skeleton, Mr Deng submits that the learned Master erred as a matter of law because:

(1)  The FNBP amounted to de facto amendments of the Statement of Claim.

(2)  The Statement of Claim was defective and the Defendant had no duty to positively plead the ordinary meanings she relied upon.

(3)  The Defendant does not have a positive duty in defamation proceedings to plead the ordinary meaning of the alleged defamatory statements or justifications for such statements when the Plaintiff has failed to properly plead their ordinary meaning.

(4)  The Master exercised his discretion unreasonably or failed to take into account relevant factors and the conduct of parties.

9.This court does not agree.

10.First, Mr Deng’s novel proposition that further and better particulars of a statement of claim amount to de facto amendments of the statement of claim is not supported by the authorities cited by him.  The fact is the Plaintiff has not amended her Statement of Claim.

11.Second, this court agrees that the way the Statement of Claim is pleaded, at least so far as paragraphs 5 and 6 are concerned, is wholly unsatisfactory.  As it is, the trial Judge will have to make an educated guess as to which specific natural and ordinary meaning pleaded in paragraph 6 is attributed to which specific alleged defamatory statement pleaded in paragraph 5. 

12.The fact that the Plaintiff has voluntarily provided the FNBP does not relieve the Plaintiff of her obligation to plead her case properly since it is not the function of particulars to take the place of necessary averments in the pleadings or to make good an inherently bad pleading.  It is also unhelpful to the trial Judge since he will have to keep going back and forth between the Statement of Claim and the FNBP in order to decipher what the Plaintiff’s case really is.  In a very simple case, that may not be too onerous a task.  But in paragraph 5, the Plaintiff has pleaded 24 alleged defamatory statements, in paragraph 6, she has pleaded 25 different meanings, and in the FNBP, several meanings are attributed to each and every alleged defamatory statement. 

13.In this regard, the way the Defendant has pleaded her Amended Defence is equally unhelpful, at least so far as paragraphs 28 and 29 are concerned.  At paragraph 28, the Defendant is effectively pleading to the FNBP.  At paragraph 29(1), she is repeating sections A and B pleaded at the beginning of the Amended Defence as facts in support of her justification and fair comment defences and leaves the trial Judge to make another educated guess as to which facts pleaded in Sections A and B are supposed to support the defences to which alleged defamatory statement. 

14.Nevertheless, irrespective of whether the Statement of Claim is, in the words of Mr Deng, “abusive and defective” and whether the Defendant has a positive duty to plead the ordinary meanings of the alleged defamatory statements that she relies upon, the fact remains that the Defendant has not sought to strike out the Statement of Claim for being “abusive and defective” - instead, the Defendant has chosen to amend her own Defence in the unhelpful way as described above. 

15.If a party seeks leave to amend his/her pleadings, there is nothing unreasonable for the learned Master to grant the usual costs order: see Hong Kong Civil Procedure 2021 Vol 1 para 20/8/51, unless there are other special circumstances which militate against that course.  From the materials before this court, one cannot tell what other special circumstances, if any, had been raised before the learned Master and which the Master ought to have taken but had failed to take into account. 

16.Third, at paragraph 30 of his skeleton, Mr Deng makes a bare assertion that the learned Master did not take into account all the relevant factors set out in RHC O 62 r 5.  But as this court points out earlier, it is unclear from the available materials what other considerations the learned Master had or had not taken into account in making the Costs Order. In these circumstances, Mr Deng’s criticism of the learned Master is unfair and his submission that the learned Master had failed to take into account relevant factors, including the underlying objectives set out in Order 1A r 1 and the conduct of parties, must be rejected.

17.For these reasons, this court is not satisfied that the Costs Order was unreasonable or that the learned Master had erred in law or had either failed to take into account proper matters or had taken into account matters that should not have been taken into account.  The appeal is hereby dismissed.

18.The court will hear the parties on costs.

Mr Kevin Bowers (solicitor advocate), of Bowers, for the Plaintiff

Mr Earl Deng, instructed by Liu, Chan and Lam, for the Defendant