Thapa Kamala v. Tong Ming Kay and Others

CACV 456/2021, [2023] HKCA 1016

On Appeal From [2021] HKCFI 2371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2021

(ON APPEAL FROM HCA NO 890 OF 2020)

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REASONS FOR JUDGMENT

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

INTRODUCTION

1.There are two applications before the Court:

(1)  the Plaintiff’s summons dated 17 November 2022 (“the Amendment Summons”) seeking leave to rely on a draft Re-Amended Statement of Claim (“the 4^th Draft RASoC”) for the purpose of her appeal (“the Appeal”) against the order of the Honourable Madam Justice Au-Yeung dated 16 August 2021 (“the Order”) (i) dismissing the Plaintiff’s summonses dated 22 March 2021 and 8 April 2021 for re-amendment of the Amended Statement of Claim (“ASoC”), and (ii) striking out the ASoC and dismissing the Plaintiff’s action against the Defendants; and

(2)  the 3^rd and 4^th Defendants’ summons dated 13 January 2023 (“the New Evidence Summons”) seeking leave to adduce the Second Affidavit of Kwan Man Wai, Steven (“Kwan 2”) together with the exhibits thereto as new evidence at the hearing of the Appeal[1].

2.At the conclusion of the hearing on 24 August 2023, we dismissed the Amendment Summons save in respect of one item of proposed amendments which we considered should be left for further consideration at the hearing of the Appeal, and made no order on the New Evidence Summonses, with reasons to be given later. We also made certain orders as to costs mentioned at the end of this judgment. These are our reasons for the judgment and the costs orders.

BRIEF HISTORY OF PROCEEDINGS

3.The Plaintiff’s action against the Defendants arose out of her prosecution for the offence of negligently endangering her own safety in relation to a road traffic accident at Tai Tam Road which occurred on 25 April 2016. The prosecution and consequential costs applications lasted some 99 days of hearing between 10 January 2018 and 6 October 2020 before a Deputy Special Magistrate (“the Deputy Magistrate”) sitting in the Eastern Magistracy. The background facts have been set out in the Judge’s decision dated 16 August 2021 (“the Decision”), and the judgment of the Court of Appeal dated 21 September 2022 (“the CA Judgment”) concerning the costs of the prosecution as well as 2 wasted costs orders made by the Deputy Magistrate against the Plaintiff’s lawyers (“the Costs Appeal”), and are well known to the parties. It is not necessary to repeat them in this judgment.

4.On 4 June 2020 (after the Plaintiff’s acquittal but before the Deputy Magistrate made the aforesaid costs orders), the Plaintiff commenced the present action against:

(1)  the 1^st Defendant - investigating police officer of the accident;

(2)  the 2^nd Defendant - Station Sergeant who laid the information before the Magistrates’ Court to commence prosecution of the Plaintiff;

(3)  the 3^rd Defendant - prosecuting Counsel-on-Fiat from 10 January 2018 to 14 September 2018 (Day 1 to Day 16 of the criminal trial);

(4)  the 4^th Defendant - prosecuting Counsel-on-Fiat from 27 September 2018 to 6 October 2020 (Day 17 to Day 99 of the criminal trial); and

(5)  the 5^th Defendant (Secretary for Justice), who is being sued in her capacity as prosecutor and on behalf of the Government of the HKSAR for being vicariously liable for the torts allegedly committed by the 1^st to 4^th Defendants.

5.The Plaintiff relies upon two causes of action against the Defendants: (i) malicious prosecution, and (ii) misfeasance in public office.

6.On 4 August 2020, the Plaintiff filed the ASoC pursuant to the leave granted by Master Hui on 17 July 2020.

7.By 2 separate summonses both dated 17 September 2020, the 1^st, 2^nd and 5^th Defendants and the 3^rd and 4^th Defendants applied to strike out the Plaintiff’s pleadings and have the claims against them dismissed on various grounds as set out at §4 of the Decision.

8.On 22 March 2021, the Plaintiff took out a summons for re-amendment of the ASoC, attaching to that summons a draft Re-Amended Statement of Claim (“the 1^st Draft RASoC”).

9.On 8 April 2021, the Plaintiff took out another summons for re-amendment of the ASoC, attaching to that summons a further draft Re-Amended Statement of Claim (“the 2^nd Draft RASoC”).

THE DECISION

10.On 16 April 2021, the Judge heard the various summonses mentioned in §§7 to 9 above. The Defendants’ strike out applications were argued on the basis of the 2^nd Draft RASoC.

11.On 16 August 2021, the Judge gave the Decision allowing the Defendants’ summonses of 17 September 2020 and dismissing the Plaintiff’s summonses of 22 March 2021 and 8 April 2021. In summary, the Judge struck out the Plaintiff’s pleadings and dismissed her action against the Defendants for the following reasons:

(1)  Save in relation to the claims against the 4^th Defendant, the Plaintiff’s claims against the 1^st, 2^nd and 3^rd Defendants amounted to a collateral attack on the final determinations in the criminal trial and should be struck out as being an abuse of the court’s process[2].

(2)  In respect of the cause of action based on malicious prosecution[3] -

(a)  The claims against the 1^st and 2^nd Defendants must fail because they were not the “prosecutors”, there was reasonable and probable cause for prosecution, there was lack of a sufficient plea of malice, and the damages allegedly suffered by the Plaintiff were not caused by or within the knowledge or foreseeability of the 1^st and 2^nd Defendants.

(b)  The claim against the 3^rd Defendant must fail for the same reasons in sub-paragraph (a) above. Additionally, he did not have power to “stop the proceedings”.

(c)  In relation to the claim against the 4^th Defendant, it is arguable that (i) he could be regarded as the “prosecutor”, (ii) there was lack of reasonable and probable cause to continue the prosecution against the Plaintiff, and (iii) there was malice. However, the damages allegedly suffered by the Plaintiff were not caused by or within the knowledge or foreseeability of the 4^th Defendant. Further, any relief in relation to the costs of the criminal proceedings would be matters for the criminal trial (to be determined by the Deputy Magistrate or the Court of Appeal on appeal from the Deputy Magistrate), but not in the current civil action. Thus, the claim against the 4^th Defendant must fail.

(d)  The 5^th Defendant was liable for the 4^th Defendant’s conduct and the decision made by the Chief Court Prosecutor on behalf of the Department of Justice to refuse to withdraw the prosecution on 21 December 2018. However, the claim against the 5^th Defendant must fail for the reasons in sub-paragraph (c) above.

(3)  In respect of the cause of action based on misfeasance in public office[4] –

(a)  The claims against the 1^st and 2^nd Defendants must fail because the elements of reasonable and probable cause for prosecution, malice, causation of damage, and knowledge/foreseeability of the damage to the Plaintiff were lacking.

(b)  The claims against the 3^rd and 4^th Defendants must fail because they were not public officers.

(c)  Accordingly, the claims against the 5^th Defendant must also fail.

THE APPEAL

12.By a notice of appeal dated 28 September 2021 (“the Notice of Appeal”), the Plaintiff appealed against the Order, raising 8 grounds of appeal:

(1)  The Judge erred in law in holding that the Plaintiff’s action was an abuse of the court’s process for the reason that it amounted to a collateral attack on the rulings of the Deputy Magistrate.

(2)  The Judge erred in finding that the 1^st, 2^nd and/or 3^rd Defendants were not prosecutors.

(3)  The Judge erred in holding that there was reasonable and probable cause to prosecute the Plaintiff.

(4)  The Judge erred in holding that, in the circumstances of the present case, there was no duty on the prosecution to investigate on the report of the Plaintiff’s expert.

(5)  In holding that there is no prospect of establishing malice against the 1^st and 2^nd Defendants, the Judge erred in holding that the conduct of the 1^st and/or 2^nd Defendants alleged by the Plaintiff only amounted to at worst negligence, incompetence or misjudgment of the evidence, and that it was far-fetched to suggest malice on the part of the 1^st and 2^nd Defendants who investigated a person whom they considered to be at fault.

(6)  The Judge erred in holding that the allegation against the 3^rd and 4^th Defendants in respect of malice must fail for the reason that the 3^rd and/or 4^th Defendants did not have the power to terminate the proceedings.

(7)  The Judge erred in holding that the damage pleaded by the Plaintiff could not be claimed.

(8)  The Judge erred in striking out the Plaintiff’s action notwithstanding that none of the holdings of the Judge satisfied the requirement that it is only in a plain and obvious case that an action should be struck out.

13.In the Notice of Appeal, the Plaintiff also sought leave to file and serve another draft Re-Amended Statement of Claim (“the 3^rd Draft RASoC”).

14.On 19 October 2021, the 3^rd and 4^th Defendants filed a Respondent’s Notice seeking to affirm the Order on various additional or alternative grounds.

15.On 2 November 2021, the 1^st, 2^nd and 5^th Defendants filed a Respondent’s Notice seeking to affirm the Order on one additional ground.

THE PRESENT APPLICATIONS

16.On 17 November 2022, the Plaintiff took out the Amendment Summons to seek leave to rely on yet another draft Re-Amended Statement of Claim (ie the 4^th Draft RASoC) for the purpose of the Appeal.

17.On 13 January 2023, the 3^rd and 4^th Defendants took out the New Evidence Summons to seek leave to adduce Kwan 2 as evidence at the hearing of the Appeal. As made clear in the submissions of the 3^rd and 4^th Defendants, they would only pursue the New Evidence Summons in the event that the Court is minded to grant leave to the Plaintiff to rely on what is referred to as the “Costs Hearing Plea” in the 4^th Draft RASoC (or 3^rd Draft RASoC) at the hearing of the Appeal[5].

DISCUSSION

(i)  The order sought by the Plaintiff under the Amendment Summons

18.In the Notice of Appeal, the Plaintiff asks for leave to file and serve the 3^rd Draft RASoC. However, in the Amendment Summons, the order that the Plaintiff seeks is not for leave to file and serve the 4^th Draft RASoC. Instead, she is seeking an order for leave to “rely on” the 4^th Draft RASoC for the purpose of the Appeal. The Amendment Summons fails, however, to make clear the basis on which the Plaintiff says she may be permitted to rely on the 4^th Draft RASoC.

19.This ambiguity prompts Mr Jeff Yau, on behalf of the 3^rd and 4^th Defendants, to argue that the Plaintiff’s application, which only seeks leave to rely on the 4^th Draft RASoC in the appeal, is procedurally “perplexing”. Mr Yau points out that despite attempts by all Defendants to clarify with the Plaintiff’s solicitors on the legal basis and purpose of the application, the Plaintiff has not provided any meaningful response, and thus there is no basis for the Court to grant the order sought by the Plaintiff in the Amendment Summons[6].

20.In his reply submissions, Mr Kelvin Leung argues that the Plaintiff has sought leave to amend the ASoC before the Judge, but the applications were dismissed. The Plaintiff then lodged an appeal against the Judge’s decision, praying for an order that the Plaintiff be allowed to file and serve the 3^rd Draft RASoC. Mr Leung submits that another application for leave to amend would be a duplication, and the Court of Appeal has inherent jurisdiction to receive and consider a revised draft RASoC in the appeal proper[7].

21.Mr Leung further attempts to clarify the Plaintiff’s position in his submissions in reply to the submissions of the 1^st, 2^nd and 5^th Defendants. According to Mr Leung, the Plaintiff’s present application “is not for leave to amend the [ASoC]”, but “is for leave to rely on the [4^th Draft RASoC] for arguing at the appeal proper. If, at the appeal proper, the Court of Appeal … finds that P’s original pleadings were defective and could be cured by amendment per the [4^th Draft RASoC], CA may set aside the Judge’s Order and allow amendment per the [4^th Draft RASoC]. Thus, whether the amendment should be granted or not should be dealt with at the appeal proper”[8].

22.On 14 August 2023, the Court directed the Plaintiff to identify, by reference to the 4^th Draft RASoC as compared to the 2^nd Draft RASoC, those amendments in the 4^th Draft RASoC which the Plaintiff says were essential for the purpose of her substantive appeal such that, without those amendments, her appeal or parts of her appeal would not be maintainable.

23.By letter dated 17 August 2023, the Plaintiff’s solicitors responded as follows:

“We wish to clarify that it is the Plaintiff’s submission that the proposed amendments contain material facts and the required particulars of her claim and matters whenever arising … The Plaintiff did not argue that the new amendments in the [4^th Draft RASoC] (or part thereof) are essential for the purpose of her substantive appeal such that without those amendments her appeal or parts of her appeal will not be maintainable. The Plaintiff says that the [4^th Draft RASoC] should be considered during the appeal proper so that the Court of Appeal could decide whether, on the whole of the [4^th Draft RASoC], the Plaintiff has a reasonable cause of action against the Defendants.”

24.Somewhat inconsistently, Mr Leung said initially at the hearing that the proposed amendments in the 4^th Draft SoC were essential for the Plaintiff’s appeal, although he later clarified that the Plaintiff would only rely on the 4^th Draft RASoC as her fallback position in the event that the Court of Appeal should come to the view that the Judge was right to strike out the Plaintiff’s existing pleadings and dismiss her action against the Defendants. In our view, the correct position is this. The Judge has decided to strike out the Plaintiff’s existing pleadings on the grounds set out in the Decision, and dismiss the Plaintiff’s applications for amendment as well as the Plaintiff’s action against the Defendants because the proposed amendments formulated by the Plaintiff in the form of the 2^nd Draft RASoC could not cure the defects in the Plaintiff’s existing pleadings. The present Appeal is against the Order of the Judge. The question that the Court of Appeal has to determine is, first and foremost, whether the Order of the Judge to strike out the Plaintiff’s pleadings and dismiss her action against the Defendants was correctly made. The answer to this question should be considered on the basis of the materials before the Judge (including the 2^nd Draft RASoC). If the Court is of the opinion that the Order was correctly made, the Plaintiff may then try to salvage her action against the Defendants by seeking leave to amend the ASoC in the form of the 4^th Draft RASoC. Whether the Court should allow the Plaintiff to put forward and rely on the 4^th Draft RASoC involves an exercise of the court’s discretion. If the proposed amendments in the 4^th Draft RASoC could not cure the defects in the Plaintiff’s existing pleadings, the Amendment Summons should be dismissed because it would not serve any useful purpose to permit the Plaintiff to rely on the 4^th Draft RASoC. On the other hand, if the proposed amendments in the 4^th Draft RASoC could or may cure the defects in the Plaintiff’s existing pleadings, the Court of Appeal will still have to be consider whether it is just and appropriate in all the circumstances to allow the Plaintiff to rely on the 4^th Draft RASoC.

(ii)  Whether Amendment Summons should be disposed of now or dealt with at the hearing of the Appeal

25.As earlier mentioned, Mr Leung submits that the Amendment Summons should be considered at the hearing of the Appeal.

26.All the Defendants oppose Amendment Summons.

(1)  The 1^st, 2^nd and 5^th Defendants submit that the proposed amendments will not serve any useful purpose. Even if the proposed amendments are allowed, the Plaintiff will clearly not be entitled to succeed in her claim. They are not necessary for the disposal of the Appeal. Further, some of the amendments should properly be for submissions, and some are merely repetitions of existing allegations or textual improvements[9].

(2)  The 3^rd and 4^th Defendants submit that the Court should adopt a more stringent approach when considering the Plaintiff’s present application than an ordinary case of amending a pleading before judgment by applying the three conditions in Ladd v Marshall. The proposed amendments should be refused because (i) all proposed amendments could have been pleaded in the 2^nd Draft RASoC by the Plaintiff exercising reasonable diligence for the Judge’s consideration, (ii) the proposed pleas are bound to fail in that they are inherently unmeritorious and/or irrelevant to the Appeal, and (iii) the evidence filed by the Plaintiff in support of the application (ie the Plaintiff’s Affidavit filed on 1 December 2022) does not provide any evidence to demonstrate the credibility or truth of the proposed amendments. Further, the Plaintiff’s delay alone in taking out the Amendment Summons some 14 months after the Notice of Appeal was filed on 17 November 2022 is sufficient to justify the dismissal of the summons[10].

27.While we are not satisfied that the approach in Ladd v Marshall should be applied when considering the Plaintiff’s application, the question of whether the Amendment Summons should be dealt with at this stage or at the hearing of the Appeal is a matter of case management. If, upon a quick perusal of the proposed amendments in the 4^th Draft RASoC, the Court comes to the view that they may arguably cure the defects in the Plaintiff’s existing pleadings, we consider that the matter should be left for further consideration at the hearing of the appeal. On the other hand, if it can easily be seen that it is not even reasonably arguable that the proposed amendments could have any impact on the Judge’s reasons for concluding that the Plaintiff’s action ought to be strike out, or could cure the defects in the Plaintiff’s existing pleadings, the Court should deal with the matter now. Having regard to the history of this matter, the Court will look at the proposed amendments robustly and will not allow the Appeal to be turned into a forensic game. All satellite applications or litigations ought to be disposed of as early as possible so that the parties can focus their attention on the real disputes between them in the Appeal.

(iii)  Unnecessary, immaterial or irrelevant averments

28.On behalf of the 1^st, 2^nd and 5^th Defendants, Ms Jess Chan relies on Ketterman v Hansel Properties Ltd [1987] 1 AC 189, 203A-B and 212F-G to submit that it is a fundamental requirement that amendments may be allowed only where they are “necessary” to enable determination of the real questions in controversy between the parties[11]. Mr Leung takes exception to this submission, arguing that, by highlighting the word “necessary”, the 1^st, 2^nd and 5^th Defendants are relying on Ketterman as authority for the proposition that amendments should not be allowed if the same are over and above what is already sufficient to establish a claim. Mr Leung submits that the Rules of the High Court do not forbid pleadings that are over and above what is considered by the opponent as sufficient to establish a claim, and that alternative claims (eg torts, contract, statute or equity) may be pleaded as long as they are not inconsistent[12].

29.While it is no doubt correct to say that the question of what is required, or may be permitted, to be pleaded by a party in his pleading is not to be dictated by what his opponent considers to be sufficient to establish a claim, any suggestion that a party may include in his/her pleadings matters which are over and above what is necessary or sufficient to establish a claim must be dispelled. Order 18, rule 7(1) of the Rules of High Court (Cap 4A) states clearly that “… every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case permits”. There are 3 points which should be emphasized here:

(1)  a pleading should contain only a statement in summary form of the material facts;

(2)  evidence should not be pleaded; and

(3)  the material facts should be set out as briefly as possible.

The failure to observe these basic requirements of pleadings has resulted in the Plaintiff’s pleadings or draft pleadings in the present case being unnecessarily prolix and repetitive, and littered with many unnecessary, irrelevant or immaterial averments or averments of evidence.

30.While it would obviously not be practicable for the court to carry out a minute examination of every pleading filed with the Court Registry to check whether it complies with the requirements of Order 18, rule 7(1), or to strike out every pleading or part of a pleading which fails to comply with the requirements of Order 18, rule 7(1), the court should not hesitate, in a serious case, to make adverse costs order against any party whose pleading infringes those requirements.

31.It is not in dispute that the Court of Appeal has power, under Order 59, rule 10(1) read together with Order 20, rule 5 of the Rules of the High Court and/or its inherent jurisdiction, to grant leave for amendment of pleadings. However, it is trite that an amendment will not be allowed if it would serve no useful purpose, or is not necessary to enable determination of the real questions in controversy between the parties: Kaiser Garments Ltd v Lai Shum Co [1980] HKLR 224, 226, quoting the judgment of Pearce LJ in Curran v William Neill & Son (St Helen) Ltd [1961] 1 WLR 1069 at 1078; Ketterman v Hansel Properties Ltd [1987] 1 AC 189, 203A-B and 212F-G. Further, Order 20, rule 8(1A) provides that “[t]he Court shall not … order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs”.

32.The identification of the real questions in controversy between the parties, and whether a proposed amendment would serve any useful purpose, must have regard to the nature of proceedings in which the application for amendment is made and the issues to be determined in those proceedings. In this connection, it is important to appreciate that, generally speaking, the powers of the Court of Appeal to grant leave to amend ought to be exercised only in connection with the exercise of its appellate jurisdiction. For amendments which are not required or necessary for the determination of an appeal (or cross-appeal), the Court of Appeal should not entertain an application for such amendments, and should leave the party concerned to make the relevant application to a Master or a Judge of the Court of First Instance. Otherwise, the Court of Appeal will be acting as a court of first instance. Further, a party who is aggrieved by an order of a Master/Judge of the Court of First Instance granting or refusing leave to amend will or may be able to appeal against the order to the Court of First Instance or Court of Appeal (as appropriate). However, a party who is aggrieved by a similar order of the Court of Appeal will have no chance of appeal against such order unless he/she manages to cross the high threshold for obtaining leave to appeal in respect of an interlocutory order to the Court of Final Appeal.

33.In the present case, the Plaintiff’s application is made in the context of an appeal against an order made by the Judge to strike out the Plaintiff’s pleadings and dismiss her action against the Defendants. In the Appeal, the real question in controversy between the parties is whether the Judge is correct to strike out the pleadings and dismiss the action. Any proposed amendment which is unnecessary, irrelevant or immaterial to the Appeal should not be allowed.

(iv)  The proposed amendments in the 4^th Draft RASoC

34.In the “Submissions of P (Amendment Summons)” dated 19 April 2023, Mr Leung categorises the proposed amendments of the ASoC in the 4^th Draft RASoC into 14 items (“Item(s)”), and submits that the proposed amendments support the Plaintiff’s claims against the Defendants and hence the appeal. Mr Leung fails, however, to explain how those amendments could possibly cure the defects in the Plaintiff’s existing pleadings save and except the following statement (relevant to Item (12)):

“For example, in striking out P’s claim, Hon Au-Yeung J held, amongst others, that the Galbraith Ruling supported the existence of a reasonable and probable cause and there was no appeal against it. As the Court of Appeal held that [the Deputy Magistrate] was apparently biased and her decisions could not stand … the Galbraith Ruling has no effect on P’s claim”[13].

35.In our view, save in respect of the Court of Appeal’s ruling that the Deputy Magistrate was apparently biased (see discussion in relation to Item (12) below), it is plain that the rest of the proposed amendments in the 4^th Draft RASoC could not cure the defects in the Plaintiff’s existing pleadings (assuming that they are defective as held by the Judge).

36.In respect of Item (1) (insertion of the “Prosecution Statement” and the relevant parts thereof), we have considered those parts of the Prosecution Statement proposed to be relied upon by the Plaintiff (§8A of the 4^th Draft RASoC) and those parts of the Prosecution Code already in the existing pleading (§9 of the 2^nd Draft RASoC). We do not consider that the Prosecution Statement adds anything of substance to the averments already made in the Plaintiff’s existing pleadings, or could affect the Judge’s reasons for holding that the Plaintiff’s claims in malicious prosecution and misfeasance in public office are incurably bad and bound to fail.

37.In respect of Item (2) (an averment that the 1^st Defendant knew that if prosecution was initiated against the Plaintiff, she would suffer injury for having to defend the charge), there is no basis for this contention save in relation to the question of legal costs which the Judge considered was a matter for the criminal trial[14].

38.In respect of Item (3) (an averment that the 1^st Defendant “concocted” that the Plaintiff dashed into the northbound lane and such evidence was used in prosecuting the Plaintiff), it has already been pleaded at §16 of the 2^nd Draft RASoC that “[w]rongfully and without reasonable cause, the 1^st Defendant recorded in his notes that after the Plaintiff stepped onto the southbound lane, she suddenly dashed onto the northbound lane thus was hit… In fact, the CCTV footage did not show that the Plaintiff has ever stepped onto the northbound lane, or that the Plaintiff had ever dashed on the Road at any time. The said statement recorded by the 1^st Defendant was groundless. The Plaintiff avers that the 1^st Defendant did not carry out his duty in investigating the Accident honestly, faithfully and honestly, but he did so with malice or ill-will against the Plaintiff”. The additional allegation of “concoction” against the 1^st Defendant adds nothing of substance to the allegations already made in the 2^nd Draft RASoC.

39.In respect of Item (4) (an averment that the 1^st and 2^nd Defendants knew that by initiating the prosecution against the Plaintiff, the Plaintiff would be put to the expense of defending the charge, and would thereby suffer loss and damage), we repeat the comment in §37 above in respect of Item (2).

40.In respect of Item (5), the deletion of the averment that Magistrate Chan (who first dealt with the traffic summons on 5 June 2017) queried whether there was any alternative way to deal with the traffic summons laid against the Plaintiff plainly could not improve the Plaintiff’s case against the Defendants, or cure the defects in the Plaintiff’s existing pleadings.

41.In respect of Item (6) (an averment that the prosecution knew that its case against the Plaintiff was weak and insufficient to support a conviction, and it acted inconsistently with the Prosecution Statement and Prosecution Code), it has already been pleaded in the 2^nd Draft RASoC that the Defendants knew that the prosecution of the Plaintiff was groundless, wrongful and/or without reasonable cause or basis, and/or there was no reasonable prospect of obtaining a conviction against the Plaintiff (see §§16, 19-25, 27-29, 40, 53-54, 57, 60, 66, 67 thereof). The additional allegation that the prosecution knew that its case against the Plaintiff was weak and insufficient to support a conviction adds nothing of substance to the allegations already made in the 2^nd Draft RASoC.

42.In respect of Item (7), the deletion of allegations made against Dr Tam (the forensic scientist who conducted traffic accident reconstruction and gave evidence for the prosecution) plainly could not improve the Plaintiff’s case against the Defendants, or cure the defects in the Plaintiff’s existing pleadings.

43.In respect of Item (8) (an averment that although the prosecution informed the Plaintiff that it would challenge the qualification of Mr Lo to give expert evidence[15], it transpired during the trial that Dr Tam agreed to Mr Lo’s method), we consider that (i) whether Mr Lo was qualified to give expert evidence, and (ii) whether Dr Tam agreed with Mr Lo’s method, are 2 different matters. The fact that the prosecution did not file any reply to Mr Lo’s report is neither here nor there.

44.In respect of Item (9) (an averment that the challenge to Mr Lo’s qualification was actuated by malice and for preventing the Plaintiff from putting forward her defence), it has already been pleaded in the 2^nd Draft RASoC that the 3^rd Defendant knew or ought to have known that he had no ground to challenge the qualification and expertise of Mr Lo (§57), that the purpose of the 4^th Defendant’s prolonged cross-examination of Mr Lo was to lengthen the trial and generate income for himself and cause injury to the Plaintiff (§74), that the 4^th Defendant made unfounded submission against the admission of Mr Lo’s evidence with knowledge that if the Deputy Magistrate accepted his submission, the Plaintiff would suffer injury by being unable to put forward her defence through the evidence of Mr Lo (§75), and that the 4^th Defendant knew his submission to the Deputy Magistrate was unfounded, or he did not have any honest belief that it was true (§75). The additional allegation that the challenge to Mr Lo’s qualification to give expert evidence in the criminal trial was actuated by malice and/or for preventing the Plaintiff from putting forward her defence adds nothing of substance to the allegations already made in the 2^nd Draft RASoC.

45.In respect of Item (10) (an averment that the 4^th Defendant knew there was no prospect of obtaining a conviction after Day 1), the substance of this averment has already been raised in §§67 and 85 of the 2^nd Draft RASoC (“… in his submissions for opposing the Plaintiff’s application for costs of the Traffic Summons, the 4^th Defendant admitted that after the 2^nd day of the trial, it was known to him or reasonably known that there was no prospect of obtaining a conviction against the Plaintiff”, and “On 20^th December 2019, the 4^th Defendant alleged that the Plaintiff’s legal team should stop the cross-examination of Dr Tam after the first day of the trial for the reason that it was then clear that there was insufficient evidence to convict”), and the averment adds nothing of substance to the allegations already made in the 2^nd Draft RASoC.

46.In respect of Item (11) – the deletion of some averments against the Deputy Magistrate on the issue of bias could not improve the Plaintiff’s case against the Defendants, or cure the defects in the Plaintiff’s existing pleadings.

47.In respect of Item (12), we accept the fact that the Court of Appeal held that the Deputy Magistrate was apparently biased may arguably be relevant to the issue of whether there was reasonable and probable cause for the prosecution of the Plaintiff, bearing in mind that one of the matters relied upon by the Judge to find for the existence of a reasonable and probable cause was the “Galbraith Ruling”[16] made by the Deputy Magistrate[17]. Ms Chan and Mr Yau argue that the issue of bias has already been raised in the 2^nd Draft RASoC (at §73), and the Court of Appeal’s ruling was given in the context of the Costs Appeal and should not be regarded as being binding or determinative in relation to the Plaintiff’s claims here against the Defendants for malicious prosecution and misfeasance in public office. Ms Chan further argues that the Court of Appeal’s ruling is a matter for submission which the Plaintiff may make at the hearing of the Appeal and does not have to be pleaded. We consider that these are matters which should be left for further consideration at the hearing of the Appeal.

48.In respect of Item (13), we do not see how the averment that the Deputy Magistrate had ordered wasted costs against the Plaintiff’s legal representatives and her reasons for such order could affect the Judge’s reasons for holding that the Plaintiff’s claims in malicious prosecution and misfeasance in public office are incurably bad and bound to fail, or cure the defects in the Plaintiff’s existing pleadings.

49.Lastly, in respect of Item (14), the allegation that during the course of the appeal in relation to the wasted costs orders, the 5^th Defendant admitted that the continuation of the prosecution was not for putting the Plaintiff to justice but was for an ulterior purpose is unsustainable even on the face of what is pleaded in §86B of the 4^th Draft RASoC (“In the course of the appeals, the 5^th Defendant was unable to provide an answer why it was in [the] public interest to prosecute the Plaintiff. The 5^th Defendant submitted that if the prosecution against the Plaintiff was terminated after the alleged improper time-wasting conduct and satellite litigations of the defence, the public might get the allegedly wrong impression that an accused could readily derail a criminal prosecution by making similar applications. The Plaintiff avers that the 5^th Defendant’s submission aforesaid amounted to an admission that the maintenance of the prosecution against the Plaintiff … was not to put her to justice, but for an ulterior purpose”). Assuming that the above underlined words represents an accurate summary of the 5^th Defendant’s submissions in the Costs Appeal, the fact that the 5^th Defendant considered it would send a wrong message to the public if an on-going prosecution was terminated merely because the defence had engaged in persistent time-wasting tactics and satellite litigations cannot reasonably or fairly be read to mean the 5^th Defendant admitted that the continuation of the prosecution was not for putting the Plaintiff to justice but was for an ulterior purpose. In any event, the allegation that the investigation and prosecution/continued prosecution of the Plaintiff was not for bringing her to justice but was for some improper purpose(s) has already been raised in the 2^nd Draft RASoC (see §§29, 30, 55, 64, 66C, 70, 82B and 84 thereof).

(v)  The New Evidence Summons

50.In view of our conclusion that the Plaintiff should not be permitted to rely on the “Costs Hearing Plea” in the 4^th Draft RASoC, ie Item (10), at the hearing of the Appeal, it is not necessary for us to further consider the New Evidence Summons.

DISPOSITION

51.The Amendment Summons is dismissed save in respect of the proposed amendments under Item (12) which we consider should be further considered at the hearing of the Appeal. No order is made on the New Evidence Summons.

52.As for the question of costs, the Defendants have been largely successful in their opposition to the Amendment Summons. We order the Plaintiff to pay 90% of the costs of the Defendants incurred in relation to the Amendment Summons. Since the New Evidence Summons was taken out in response to “Costs Hearing Plea” in the 4^th Draft RASoC which has been disallowed, we further order the Plaintiff to pay the costs of the 3^rd and 4^th Defendants in respect of the New Evidence Summons.

53.Having considered the respective costs statements of the 1^st, 2^nd and 5^th Defendants and the 3^rd and 4^th Defendants and the parties’ submissions, we consider the costs claimed by the 1^st, 2^nd and 5^th Defendants and the 3^rd and 4^th Defendants to be excessive. We summarily assess their costs as follows:

(1)  In respect of the Amendment Summons –

(a)  the 1^st, 2^nd and 5^th Defendants’ costs are assessed in the sum of HK$120,000; and

(b)  the 3^rd and 4^th Defendants’ costs are assessed in the sum of HK$120,000.

The Plaintiff shall pay 90% of the above costs to the 1^st, 2^nd and 5^th Defendants and the 3^rd and 4^th Defendants respectively.

(2)  In respect of the New Evidence Summons, the 3^rd and 4^th Defendants’ costs are assessed in the sum of HK$120,000.

54.We further make an order that no party may take out any further summons or make any further interlocutory application without leave of the Court. Any such application must be supported by a certificate of counsel certifying that the application is a proper one to be made, and that client has been fully advised of the possible adverse costs consequences which may be made in the event that the Court is of the view that the application ought not to have been made.

55.Lastly, we record that Mr Leung has confirmed in court, on behalf of the Plaintiff, that the Plaintiff will not seek to revive the 3^rd Draft RASoC at the hearing of the Appeal.

Mr Kelvin Leung, instructed by How & Co, for the Plaintiff (Appellant)

Ms Jess Chan of Secretary for Justice, for the 1^st,2^nd & 5^th Defendants (Respondents)

Mr Jeff Yau, instructed by Reynolds Porter Chamberlain, for the 3^rd & 4^th Defendants (Respondents)