Wong Wai Keung v. Commissioner of Police

HCMP 1222/2020

[2021] HKCFI 3609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1222 OF 2020

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BETWEEN

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D E C I S I O N

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1.By Summons dated 23 September 2021 (the “Plaintiff’s Summons”) and as clarified by the Plaintiff’s Skeleton Submissions lodged for today’s hearing, the plaintiff seeks effectively an extension of 47 days until 9 November 2021 to serve P’s Non-Digital Schedules (all due on 23 September 2021) on the Commissioner (ie 28 days from the date of the order to be made herein).

2.This is the 7^th application for extension of time made by the plaintiff under the Protocol, albeit the first application regarding non-digital materials.

3.On 2 September 2021, the joint inspection of all the non-digital materials seized was completed. The only reason put forward is that the plaintiff is seeking counsel advice on the preparation of P’s Non-Digital Schedules (see paragraph 10 of the plaintiff’s 7^th Affirmation). But he has not provided any reasons for his failure to meet the deadline of 23 September 2021.

4.As pointed out by the Commissioner, the plaintiff/the plaintiff’s Designated Representatives attended all 16 of the joint inspection sessions for non-digital materials and was assisted/attended by at least one solicitor and one counsel on each occasion. I agree that the seeking and rendering of legal advice should have been ongoing for months, and is not a new matter on which counsel’s advice has to be sought afresh.

5.In the circumstances, I agree that an unless order is necessary to ensure the proper conduct of these proceedings and instill a necessary sense of discipline in the plaintiff’s compliance of court orders.

6.Accordingly, I order that unless the plaintiff serve the P’s Non-Digital Schedules by 5pm on 28 October 2021:

(1) the plaintiff shall be debarred from serving any P’s Non-Digital Schedules in respect of the relevant non-digital materials, and his LPP and JM claims in respect of the materials shall be dismissed; and

(2) the defendant shall be at liberty to inspect, extract and/or otherwise access or use for investigation the relevant non-digital materials.

(Discussion re costs)

7.There is no dispute that the plaintiff should pay for the costs, the only dispute is the basis of taxation.

8.Like the last occasion, I am of the view that the conduct of the plaintiff is not so “under-par” to make it appropriate to penalise him by an order for indemnity costs.

9.Today’s position is a fortiori as this is the first time extension sought by the plaintiff for non-digital items.

10.Accordingly, I order that the costs of and incidental to the Plaintiff’s Summons be to the defendant, such costs are to be taxed on the party-and-party basis if not agreed.

Mr Lawrence Pang, instructed by Robertsons, for the plaintiff

Mr Alan Wong, SGC(Ag) of the Department of Justice, for the defendant