Lam Chung Ping and Others v. Chan Yuet Kuen and Another

DCCJ 2203/2023

[2025] HKDC 476

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2203 OF 2023

-------------------------

BETWEEN

-------------------------

-------------------------

DECISION

-------------------------

1.This is the first day of a civil trial scheduled to last for 6 days. The PTR for this trial was handled by a different Judge.

2.I read all papers for the first time last week and raised written requisitions. I gist, I had a problem with the Amended Statement of Claim (“ASoC”) filed by the Plaintiffs (“Ps”) in 2022. At its page 7 as part of its prayer, there was a §(i) which read “damages on slander on title”. There was, however, no plea of malice anywhere. The word “malice”, or any of its possible variations, was nowhere to be found. I found that shocking.

3.Ms Lee Wing Ki, Counsel for Ps for the trial, did not settle the ASoC. The ASoC was settled by another member of the Bar. Ms Lee had however confirmed to me that according to her own understanding, the plea of “slander on title” was meant to be a plea of “slander of title”, a species of the common law tort of malicious falsehood. Ms Lee drew my attention to Tai Yip Dyeing Factory Ltd v Kong Hoi Sang [2007] 1 HKLRD 608, a judgment of Saunders J, §§38 & 39 of which read: -

“… An essential element of the tort of slander of title is that the publication must be malicious. Slander of title is a specific cause of action under the generic tort of malicious falsehood. Mr Pao relied upon Hong Kong Wing On Travel Service Ltd v Hong Thai Citizens Travel Services Ltd [2001] 2 HKLRD 481 to establish the essential elements of malicious falsehood. There Chu J held that the publication must be malicious in that either the defendant knew when he published the words that they were false or he was reckless as to whether they were true or not; or he did so for the purpose not of advancing his own interest but of injuring the plaintiff. Consequently if the publication is undertaken in the bona fide, though wrongful, assertion of a right, no action will lie.”

4.The propositions above are trite and I agree with them.

5.I am independently aware that the current edition of Gatley on Libel and Slander said the same things at its §§22-027 & 22-028.

6.Order 18 rule 12 of the Rules of the District Court (Cap 336H) specifically said: -

“… every pleading must contain the necessary particulars of any claim… including… (b) any condition of the mind of any person, whether any disorder or disability of mind or any malice…”

7.Combining the above, it is crystal clear to me that any litigant who wishes to claim damages for “slander of title” or any other species of malicious falsehood must expressly plead the word malice within the body of the pleading itself and then plead full particulars of malice, failing which the pleading is defective. The ASoC filed by Ps is a defective pleading.

8.That was unacceptable.

9.As I said in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§146, DDJ Kenneth KY Lam): -

“… a court of law is not, and should never be treated as, a rubbish bin. Litigants and solicitors should not file rubbish into court. For solicitors in particular, as DHCJ Herbert Au-Yeung (as His Lordship then was) had aptly stated in JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (at §29), their duty to the court itself prevails over their duty to their client. Filing defective pleadings into court and keeping them defective on purpose would adversely affect the court’s duty to administer civil justice efficiently and effectively and is unacceptable. A litigant who, by herself or via solicitors, chose to file defective pleadings into court and keeping them defective on purpose cannot complain about the matter being decided against her accordingly.”

10.Over a decade earlier, Ribeiro PJ had this to say in Sinoearn International Ltd v Hyundai-CCECC Joint Venture (2013) 16 HKCFAR 632 (§§30 to 34): -

“… A party must raise all the issues he wishes to raise to be dealt with at the trial… The other party is entitled to know from a clear pleading what is the entire case he has to meet so that he can decide whether particulars should be sought; how he should plead in response; what discovery he is entitled to; what evidence he should adduce to meet it; and what points of law should be taken… The response of counsel for the plaintiff… that ‘the point was not disputed’ could not be accepted: How could one expect the other side to dispute, or to come ready with evidence to refute, a point that has not been pleaded or even formulated in draft? Pleadings are not mere formalities. They impose a necessary discipline and are fundamental to enabling every procedural facet of the adversarial system to operate fairly.”

11.The problem which I have to deal with arose from the fact that the Defendants (“Ds”) in this matter were and remain unrepresented so that they did not appear to have appreciated they could have applied to have Ps’ plea of “slander of title” struck out, and no such application was ever made by any of them.

12.Having discussed this with Ms Lee Wing Ki, Counsel for Ps for the trial, my decision is to exercise my power under Order 18 rule 19(1) of the Rules of the District Court (Cap 336H) to strike out §(i) of the prayer in the ASoC which read “damages on slander on title” on the grounds that it (1) disclosed no reasonable cause of action; (2) may prejudice embarrass or delay the fair trial of this action; and/or (3) is otherwise an abuse of the process of this Court. I am doing this on my own motion, as I am entitled to under the post-CJR Order 18 – HKCP 2025, §18/19/1 – or this Court’s inherent jurisdiction to control its own processes. Even if I were wrong, I would in any case have exercised my case management power to exclude the issue of damages for slander of title or malicious falsehood under Order 1B rule 1(2)(j) of the Rules of the District Court (Cap 336H), and the result would in practice be identical.

13.For the avoidance of doubt, this decision does not in any way affect Ps’ entitlement to pray for the removal of the offending document, a Form A in FCMC2959/2007 registered in the Land Registry via Memorial No. 19062802620014, under other principles of law, such as those declared by DHCJ Cheung in Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594, which I examined in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933 (§22). In gist, our courts have the inherent jurisdiction to make orders vacating the registration of any document in the Land Registry. That jurisdiction can be exercised without proof of the commission of any tort. The trial in relation to that relief shall proceed.

14.I thank Ms Lee Wing Ki for her most able assistance.

Ms Lee Wing Ki, instructed by Mike So Joseph Lau & Co, for the plaintiffs

The 1^st defendant appeared in person

The 2^nd defendant was not represented and did not appear