So Yip Fai Johnny v. Shun Hing Electric Service Centre Ltd and Others

HCA 1503/2023

[2024] HKCFI 224

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1503 OF 2023

BETWEEN

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DECISION

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1.Introduction

1.1This is the Plaintiff’s out-of-time appeal against the order of Master SP Yip dated 20 October 2023 (“Order”), by which the learned Master (1) dismissed the Plaintiff’s summons dated 11 October 2023 (“Summons”), (2) of his own motion struck out the specially-indorsed Writ of Summons dated 18 September 2023 for disclosing no reasonable cause of action, (3) ordered there be no order as to costs as between the Plaintiff and the 3^rd Defendant, and (4) ordered the Plaintiff do pay to each of the 1^st and 2^nd Defendants costs of the action (including the costs of the Summons) assessed at HK$1,040.

1.2The present appeal is pursued only against the 1^st and 2^nd Defendants.

2.Background

2.1The Plaintiff has throughout acted in person.

2.2As stated above, on 18 September 2023, the Plaintiff issued a specially-indorsed Writ of Summons. In so far as it may be deciphered, the Statement of Claim pleads the following:

(1) The amount claimed is HK$10,000,000.

(2) It is said that the claim is for the mismanagement of the 1^st Defendant. It is alleged that on 24 August 2023 at around 5:30 pm, the Plaintiff was told by a person by the name of Jimmy Kwan (“Kwan”), who was purportedly the manager stationed at the Panasonic outlet on the 13^th floor of SOGO Department Store, that the price of an 8-inch exhaust fan did not include installation and that there was no installation service provided.

(3) It is further alleged that Kwan was not cooperative.

(4) The Plaintiff then contends what Kwan represented to him is contrary to a TV advertisement of Panasonic, the content of which is that the purchase of Panasonic appliances would be “accompanied with installation”.

(5) It is then alleged that what Kwan had represented was contrary to the Trade Description Ordinance Cap 362.

(6) At the material time, Police Constable 5295 was present.

(7) Attached to the Statement of Claim is an invoice dated 25 August 2023 (“Invoice”), evidencing that the Plaintiff had purchased from Asia Gas & Engineering Co Ltd two exhaust fans of different brands (Panasonic and KDK), respectively at HK$346 and HK$342, and he paid extra for installation (HK$330 each). The invoiced sum is HK$1,348.

(8) Finally, it is alleged that the Invoice represented the “second time to do so, which means there was no improvement of Panasonic Customer Service!”

2.3On 6 October 2023, the 1^st Defendant filed its Acknowledgement of Service stating that it intended to contest the proceedings.

2.4On 11 October 2023, the Plaintiff issued the Summons, by which he sought “final Judgment so that I do not have to keep on waiting”. In his supporting affidavit of the same date, he stated that “A TV advertisement of Panasonic stating that electric appliances are accompanied with installation. Contrary to the Trade Description Ordinance.”

2.5On 12 October 2023, the 3^rd Defendant filed its Acknowledgement of Service stating that it intended to contest these proceedings. However, it appears that the Summons was not served on the 3^rd Defendant. Indeed, on 7 November 2023 (well after the Order was made on 20 October 2023), the 3^rd Defendant issued a summons to strike out the Writ of Summons. By an order dated 16 November 2023, the 3^rd Defendant obtained leave to withdraw its summons, on the basis that summons has become otiose by reason of the Order.

2.6On 19 October 2023, in the light of the Summons, the Department of Justice filed a Notice to Act for the 2^nd Defendant. No Acknowledgement of Service was filed, and at the hearing before the learned Master, there was some confusion as to whether the Writ of Summons was served on the 2^nd Defendant. At the hearing before me, the 2^nd Defendant confirmed that the Writ of Summons was served.

2.7The 3^rd Defendant did not attend the hearing before the learned Master on 20 October 2023 (§2.5 above). The learned Master’s reasons for making the Order were as follows:

(1) The Summons does not state the rule relied upon to seek final judgment.

(2) Summary judgment is not applicable as there is non-compliance with RHC Order14, rule 2, in that there is no verifying affidavit stating that in the Plaintiff’s belief there is no defence to his claim thereby warranting the dismissal of the Summons.

(3) The claim is convoluted and incomprehensible, in that, amongst other things (a) the particulars of the alleged TV commercial is not pleaded and it is unknown whether there was any breach of the Trade Description Ordinance and by whom, (b) no breach of duty, wrongdoing or any liability of any of the Defendants are pleaded, and (c) basis of the claim in the sum of HK$10,000,000 is not pleaded.

(4) In the exercise of his case management powers under RHC Order 1A, rule 4, the learned Master of his own motion struck out the Writ of Summons.

3.The Notice of Appeal

3.1The Notice of Appeal was filed on 29 November 2023 and is out of time by 26 days. The Notice of Appeal seeks an extension of time to appeal.

3.2Appended to the Notice of Appeal are various documents including, relevantly, a two-page document (“Document”) setting out the details of his complaint:

(1) The learned Master was wrong to believe that the 2^nd Defendant was not served with the Writ of Summons and a copy of the first page of the Writ of Summons bearing the chop of the Security Bureau Government Secretariat is attached (§2.6 above).

(2) By a letter dated 16 October 2023, the Plaintiff notified the learned Master that the 3^rd Defendant refused to accept service of the Summons and supporting affidavit.

(3) The Plaintiff reiterated what he told the learned Master, namely that his loss was to be assessed by reference to the time wasted at the SOGO Department Store. He alleges that “there are two versions of TV advertisement which have been showing on TV occasionally in the past few years.” The learned Master was wrong in saying that the monetary claim was fanciful (天馬行空) and such view reveals the Master’s lack of common sense and reasoning. The Plaintiff says that in the architectural field, the architect charges 1% of the total value of the contract, and similarly in the field of building management, manager’s remuneration is 1% of the contract. The Master failed to consider how many Panasonic customers facing the situation like the Plaintiff.

(4) The Plaintiff also alleges collusion between the government and business (官商勾結).

(5) The learned Master was lazy in not assigning a staff to notify the 3^rd Defendant to attend the hearing on 20 October 2023.

3.3Although it might be said that some of the matters were not raised at the hearing before the learned Master, I am prepared to proceed on the basis that the matters stated in the Document are submissions rather than evidence and are therefore not precluded by RHC Order 58, rule 1(5).

3.4Of particular note is that, in the Document, no explanation was proffered by the Plaintiff for the delay in pursuing the present appeal.

4.Analysis

4.1Whilst an appeal pursuant to RHC Order 58 is a rehearing of the application, I am entitled, if thought fit, to adopt the learned Master’s reasoning in my own judgment without setting out my own reasoning: Hong Kong Civil Procedure 2024 Note 58/1/2.

4.2Further, in considering whether to extend time to appeal, the court has to consider all relevant factors, particularly (1) the length of the delay, (2) the reason for the delay, (3) the merits of the proposed appeal, and (4) the degree of prejudice to the other party: Hong Kong Civil Procedure 2024 Note 58/1/9.

4.3In my view, the lack of merits of the proposed appeal and the lack of explanation for the delay are dispositive of the application for extension of time.

4.4The learned Master was entirely correct in dismissing the Summons. Plainly, the summary judgment regime is inapplicable for there is a non-compliance with RHC Order 14, rule 2.

4.5I would also add that the default judgment regime does not assist the Plaintiff either.

(1) As far as the 1^st and 3^rd Defendants are concerned, they have given their Notices of Intention to Defend and that would preclude the entering of judgment: Hong Kong Civil Procedure 2024 Note 13/0/15.

(2) As regards the 2^nd Defendant, where (a) it has not acknowledged service on him of the Writ of Summons pursuant to RHC Order 12, rule 3, and (b) the Plaintiff has not produced (and was unable to produce since it had not happened) the Writ of Summons indorsed by the 2^nd Defendant’s solicitors with a statement that he accepts service of the Writ of Summons on the 2^nd Defendant’s behalf, under RHC Order 13, rule 7, judgment could not be entered unless the Plaintiff has filed an affidavit proving due service of the Writ of Summons on the 2^nd Defendant, which was not done.

(3) In any event, I am unable to see how the Plaintiff’s claim can be one for liquidated demand such that a “final judgment” (as opposed to an interlocutory judgment for damages to be assessed) may be entered as sought in the Summons: Hong Kong Civil Procedure 2024 Note 6/2/4.

4.6I am also of the view that the learned Master was entirely correct in striking out, of his own motion, the Writ of Summons for disclosing no reasonable cause of action. Under RHC Order 1A, rule 4(2)(c), active case management by the court includes deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others. Moreover, pursuant to RHC Order 18, rule 19(1), the court may, of its own motion, to strike out a pleading at any stage of the proceedings.

4.7The claim, as formulated, has no chance of success when only the allegations in the Statement of Claim are considered: Hong Kong Civil Procedure 2024 Note 18/19/5.

4.8I share the learned Master’s view that the Plaintiff’s pleaded claim is convoluted and incomprehensible.

(1) Even on the assumption that the facts as pleaded are true, I cannot see how it can be said that the 2^nd and/or the 3^rd Defendants may be linked to representations made by Kwan and/or any alleged contravention of the Trade Descriptions Ordinance. The pleaded case that Police Constable 5295 was present at the scene, if it is thought that a viable cause of action is then advanced against the 2^nd Defendant, is unarguably bad.

(2) As against the 1^st Defendant, whilst it may be said that the 1^st Defendant may be factually more “proximate” to the representations made by Kwan and/or the alleged contravention of the Trade Descriptions Ordinance, there is no pleaded causal link between them on the one hand and the alleged loss in the sum of HK$10,000,000 on the other, which warrants an strike out order against the Writ of Summons: Lee Chick Choi v Best Spirits Company Limited, HCMP 371 of 2015, 21 May 2015 §§13, 25 and 28.

5.Conclusion

5.1For the above reasons, there is no merit in the Plaintiff’s appeal. Coupled with the complete lack of explanation for the delay, I decline to exercise my discretion to extend time to appeal. I dismiss the Notice of Appeal dated 29 November 2023.

5.2I have heard submissions on costs. The Plaintiff accepted that costs should follow the event. I order the Plaintiff to pay costs to the 1^st and 2^nd Defendants.

5.3The Plaintiff did not raise any objection against summary assessment. In relation to the Statements of Costs lodged by the 1^st and 2^nd Defendant, the Plaintiff did not raise any specific comments, but asserted that they were generally on the high side. He further submitted that he brought this claim because (1) he was previously a victim of defective product and had injured himself in the course of using a defective apple cutter-divider and (2) in his view, the 1^st Defendant should be punished and the general body of consumers should be protected.

5.4I do not accept the factors raised by the Plaintiff are relevant or meritorious. It cannot be seriously suggested that this action involved any public interest, for it claims HK$10,000,000 for himself.

5.5Having considered the Statements of Costs, I assess the 1^st and 2^nd Defendant’s costs at respectively HK$18,000 and HK$14,000.

5.6The Notice of Appeal and the Document were drafted in English but the Plaintiff preferred to make his oral submissions in Punti. The Plaintiff indicated at the hearing that my decision may be rendered in English, as he has a sufficient command of the language. However, should the Plaintiff, upon further reflection, require interpretation of this decision, he may contact my clerk for the necessary arrangement to be made.

The Plaintiff, acting in person

Ms Coco Lam, instructed by William Lam & Co, for the 1^st Defendant

Mr Simon Au, Government Counsel, of the Department of Justice, for the 2^nd Defendant