Guangdong Yinggao Shipping Ltd v. Secretary for Justice

HCA 1677/2015

[2023] HKCFI 3110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1677 OF 2015

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BETWEEN

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REASONS FOR DECISION

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1.This was the Plaintiff’s application for (a) leave to appeal from this Court’s dismissal of its appeal from the decision of Mr Registrar Simon Kwang on 26 October 2023; and (b) an extension of time of one day to make the application for leave to appeal. At the conclusion of the hearing, leave was refused with costs to the Defendant to be summarily assessed and payable forthwith.

2.On 7 July 2023, the Registrar dismissed the Plaintiff’s application to expunge the witness statement of Lui Siu Fai (“LSF”) and to strike out the Amended Defence

3.This Court’s reasons for dismissing the appeal from the Registrar are set out in Reasons for Decision dated 6 November 2023 (“Reasons”) to which reference should be made for the relevant background facts (including its lengthy procedural history) as well as the reasons for dismissing the Plaintiff’s appeal.

The draft notice of appeal (“NOA”)

Ground 1: whether it was plain and obvious that the Defendant never exchanged its witness statements

4.Mr Raymond Young, counsel for the Plaintiff, submitted that the Court erred in not striking out the Amended Defence in rejecting that it was plain and obvious that the Defendant never exchanged its witness statements. 3 reasons were given:

(1) the Court failed to take into account the absence of direct evidence that such witness statements had been exchanged;

(2) the Court attached no weight to the fact that the witness statements had not been filed with the Court when such act was highly prohibitive of the Plaintiff’s position that the witness statements had not been exchanged; and

(3) the Plaintiff sought to challenge the Court’s rejection of the veracity of the matters stated in Chin 4^th, largely focusing on §22 (iv) of the Reasons.

5.As regards (1), to succeed on a striking out application, the onus is on the Plaintiff to demonstrate that it is plain and obvious that the Defendant never exchanged its witness statements. In reaching its conclusion, the Court has to consider all relevant factors of which the absence of direct evidence from the Defendant was but one.

6.Its absence was clearly not dispositive when the Defendant was under no obligation to adduce direct evidence to prove that such service took place. The Plaintiff’s contention would reverse the burden of proof.

7.As regards (2), the Plaintiff took issue with the statement in the Reasons (at §10) that the filing of witness statements is not required absent an order to that effect. In its written submissions, the Plaintiff raised a new point based on its interpretation of Order 38, rule 2A (2) and rule 2A (7) (a).

8.On 19 September 2016, Registrar Lung ordered the parties to “exchange all statements of factual witnesses, which will stand as evidence in chief unless otherwise directed by the trial judge”. In so doing, the Registrar was acting pursuant to Order 38, rule 2A (2) and rule 2A (7) (a).

9.In pertinent part, paragraph 3 (b) (iv) of the Plaintiff’s written submissions read as follows:

“where a witness statement is directed to stand as evidence in chief of the witness pursuant to rule 2A (7) (a), the necessary implication of this rule is that the witness statement be filed with the court. Only by having a filed copy of the witness statement can the court exercise its functions of granting leave to the witness to amplify the witness statement or give evidence in relation to new matters (see rule 2A (7) (b)) and allow any person to inspect a witness statement (see rule 2A (12)).” (Emphasis added)

10.This appears to be little short of an invitation to amend/recast Order 38 by inserting (presumably into rule 2A (7) (a)) a requirement that the witness statement be filed. It is not the role of the Court to rewrite the rules.

11.In any event, had the Registrar considered it necessary for the witness statements not only to be exchanged but also filed, he would have so ordered. There is no justification to second-guess the Registrar’s true intention.

12.As regards (3), in §22 (iv) of the Reasons, the Court considered it inexplicable that 2 years after ceasing to be the Plaintiff’s solicitors in HCA 1677, HTW still had files for Mr Fred Ho to review. The Plaintiff submitted that the assumption that the old solicitors’ entire client file gets transferred to the new solicitors is incorrect, citing the Law Society Guidance Note on Storage and Destruction of Old Files (Revised June 2012).

13.There was no evidence whatsoever of HTW’s practice or policy (if any) adopted to implement the Guidance Note. In the absence of that evidence, it is unclear how and where witness statements if exchanged would have been recorded. There was also no affirmation from Mr Ho as to what files/records he was able to consult in reaching his conclusion.

14.It is also to be noted that the Plaintiff did not challenge subparagraphs (i) to (iii) of §22. Presumably, it was unable to disagree with those reasons for doubting the veracity of Chin 4^th.

15.The Plaintiff also raised a new matter that it did not raise at the October hearing. The document in question was the Plaintiff’s Timetabling Questionnaire (“TQ”) dated 24 May 2023 that was in the October hearing bundles[1] but in respect of which no submissions were made at the October hearing. Had the point been material, it was unlikely to have been overlooked.

16.Be that as it may, the Plaintiff highlighted the fact that the Defendant never replied to any of the Plaintiff’s accusations of non-service of witness statements. It singled out the Defendant’s failure to reply to the Plaintiff’s accusation made in Part M1 of the Plaintiff’s TQ objecting to the Defendant’s request to file and serve a supplemental witness statement. This was despite the Defendant writing to the Master’s clerk on 25 May 2023 in relation to the parties’ respective TQs.

17.The Plaintiff’s criticism is misplaced since the Defendant had already filed its TQ that prompted the Plaintiffs objection in Part M1. The Defendant was under no obligation to reply to the accusation since the onus of proof was on the Plaintiff.

18.In any event, when the Court enquired as to the Court’s disposition of the Plaintiff’s objection, the Plaintiff replied that the relevant document was not in the hearing bundles. In those circumstances, the new matter cannot assist the Plaintiff.

Conclusion

19.For those reasons, I see no merit in Ground 1 of the NOA. In my view, the prospects of the Plaintiff overturning the dismissal of its application to strike out the Amended Defence are virtually nil.

Ground 2: the competence point

20.The Plaintiff did no more than repeat the submissions it made at the October hearing.

21.It cited the CFA’s judgment in Yeung May Wan & Others v HKSAR (2005) 8 HKCFAR 137 at §§71, 73-76 that concerned the power of the arrest, holding that it is the state of mind of the arresting officers, and not that of the commanding officer, that matters.

22.That case has no application unless, contrary to my view, the issues relating to the lawfulness and bona fides of actions taken by the CED officers are found to have been pleaded in the ASOC.

23.Even if it were applicable, there are significant differences in the factual backdrop to the 2 cases. Yeung May Wan’s case concerned arrests made during a demonstration when the demonstrators ignored a series of police warnings. The present case concerned an operation plan and enforcement action devised by LSF, the Unit Commander and officer in charge of CED’s investigation on a syndicate suspected to be involved in the offence of smuggling. LSF himself manned the Command Centre and kept the entire operation in view, including the boarding of the vessels and the inspection of cargo manifests by CED officers[2].

24.I stand by my view expressed in the Reasons that LSF is a competent witness.

Conclusion

25.Accordingly, Ground 2 is equally meritless.

Mr Simon N M Young, instructed by Tung, Ng, Tse & Lam, for the Plaintiff

Ms Esther Chan, senior government counsel of Department of Justice, for the Defendant