Sembu Yam Bahadur v. Tsang Hon Wai Trading As Messrs. Krishnan & Tsang

DCCJ 1828/2022

[2026] HKDC 1552

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1828 OF 2022

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DECISION

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1.The Defendant applied by summons dated 4 July 2025 for an order striking out the plaintiff’s Statement of Claim and dismissing the action as an abuse of the process of the court pursuant to Order 18, rule 19 of the Rules of the District Court. On 8 January 2026, the Master, after hearing the parties, allowed the application and granted the order with costs against the Plaintiff. This is the Plaintiff’s appeal. Although it is the Plaintiff’s appeal, I hear the appeal by way of re-hearing in accordance with the rules.

Further evidence

2.The present appeal first came before me on 17 April 2026. One of the Plaintiff’s grounds of appeal is that Mr Cleves, for the Defendant, produced, for the first time, a set of 4 letters emailed to the Plaintiff to show the Plaintiff’s knowledge of certain facts for the Master’s consideration at the hearing, and that the Plaintiff was denied the time to properly deal with those letters at that hearing. The Master did consider those letters in coming to her decision at the hearing.

3.I bear in mind the rule that no further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal except on special grounds (Order 58 rule 1(4)). In the interest of fairness, I gave directions that the 4 letters be properly disclosed by affidavit evidence and that the Plaintiff be given the opportunity to deal with them by affidavit evidence in reply.

4.By affidavit dated 23 April 2026, the Defendant explained and produced the 4 letters dated respectively,

Letter 1 : 30 November 2013,

Letter 2 : 22 January 2014,

Letter 3 : 25 February 2014, and

Letter 4 : 28 November 2014

5.On 22 July 2026, the Plaintiff filed an affirmation in reply attaching a list of exhibits marking various documents as “SYB-1” to “SYB-16”. At the hearing, the Plaintiff explained that he put the exhibited documents in a separate bundle and labelled them as E1 for SYB-1, and E2 for SYB-2, and so on. Mr Cleves, for the Defendant, did not raise any objection in this regard.

6.The Plaintiff had apparently prepared 2 hearing bundles without any pagination for the present hearing. I do not think it appropriate to use such bundles. I shall use the hearing bundles prepared by the Defendant for the last hearing with the addition of the Defendant’s affidavit dated 23 April 2026 and the Plaintiff affirmation dated 22 July 2026.

Discussion

7.The basis of the Defendant’s striking out application is that the Plaintiff’s claim alleging negligence and/or breach of contract in respect of the Defendant’s conduct in DCCJ 313 of 2010, is time barred under Section 4(1) of the Limitation Ordinance (the “Ordinance”). In DCCJ 313, the Plaintiff used another name to sue, namely, Limbu, Netra Kumar. There is no dispute that Limbu, Netra Kumar in DCCJ 313 is the Plaintiff in the present case.

8.Order 18, rule 19 empowers the court at any stage of the proceedings to strike out any pleadings and to stay or dismiss the action where,

(1)  the pleading discloses no reasonable cause of action or defence;

(2)  the pleading is scandalous, frivolous or vexatious;

(3)  the pleading may prejudice, embarrass or delay the fair trial of the action;

(4)  the pleading is otherwise an abuse of the process of the court.

9.The Defendant relies on limb 4. The court will not permit its machinery to be deployed oppressively or vexatiously and will, in an appropriate case such as where a claim is plainly time barred, summarily prevent its continuation (see Hong Kong Civil Procedure 2026 at paragraph 18/19/9). The issue in the present case is whether the Plaintiff’s claim is time-barred.

10.Section 4 of the Ordinance provides that an action founded on contract or tort shall not be brought after the expiration of six years from the date on which the cause of action accrued.

Plaintiff’s claims

11.The Plaintiff’s Statement of Claim pleaded two main categories of complaints, namely,

(1)  five interlocutory costs orders made against the Plaintiff in DCCJ 313 and,

(2)  the settlement of the DCCJ 313 in February 2014.

12.In respect of the five costs orders, the Plaintiff’s complaint is that the Defendant (who were the solicitors acting for the Plaintiff in DCCJ 313) were negligent in allowing these orders to be made by, inter alia, failing to advise him of procedural requirements or deadlines. For each costs order, any cause of action in negligence accrued on the date the order was made. The latest costs order was dated 25 September 2013. Applying the primary six-year limitation period, any claim in respect of the costs orders became time-barred by 25 September 2019 at the latest. This is well before the commencement of this action in May 2022.

13.The Plaintiff’s second complaint relates to the settlement of the DCCJ 313 action, which was settled by a consent order with costs on party and party basis. The Plaintiff alleges that the Defendant negligently failed to identify him as a mentally incapacitated person and failed to protect his interest, resulting in him receiving much less than what he would otherwise be entitled.

14.The consent order was made on 4 February 2014. Any cause of action arising out of the settlement accrued on 4 February 2014. Given that the Writ and the Statement of Claim in the present action were filed on 20 May 2022, the Plaintiff’s claims were brought outside the six-year limitation period prescribed by section 4 of the Ordinance.

15.The next question is whether the Plaintiff can invoke either section 31 or section 22 of the Ordinance so as to extend time.

Section 31

16.Section 31 of the Ordinance provides:

“(1) This section applies to any action for damages for negligence, other than one to which section 27 applies, where the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both—

(a) the knowledge required for bringing an action for damages in respect of the relevant damage; and

(b) a right to bring such an action,

(referred to in this section as the date of knowledge) falls after the date on which the cause of action accrued.

(2) The period of limitation prescribed by section 4(1) in respect of actions founded on tort shall not apply to an action to which this section applies.

(3) An action to which this section applies shall not be brought after the expiration of the period applicable in accordance with subsection (4).

(4) That period is either—

(a) 6 years from the date on which the cause of action accrued; or

(b) 3 years from the date of knowledge, if that period expires later than the period mentioned in paragraph (a).

(5) In subsection (1) the knowledge required for bringing an action for damages in respect of the relevant damage (就有關損害而提出損害賠償訴訟所需的知悉) means knowledge—

(a) of such facts about the damage in respect of which damages are claimed as would lead a reasonable person who had suffered such damage to consider it sufficiently serious to justify his instituting proceedings for damages against a defendant who did not dispute liability and was able to satisfy a judgment;

(b) that the damage was attributable in whole or in part to the act or omission which is alleged to constitute negligence;

…

(6) Knowledge that any acts or omissions did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (1).

(7) For the purposes of this section or section 33 a person’s knowledge includes knowledge which he might reasonably have been expected to acquire—

(a) from facts observable or ascertainable by him; or

(b) from facts ascertainable by him with the help of appropriate expert advice which it is reasonable for him to seek,

but a person shall not be taken by virtue of this subsection or section 33 to have knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain (and, where appropriate, to act on) that advice.”

17.Section 31(7) defines knowledge to include knowledge which the plaintiff might reasonably have been expected to acquire.

18.The Plaintiff alleges that he did not know about the existence of any costs order made against him in DCCJ 313 and that the Defendant had never informed him of any costs orders until he, with the help from a friend, conducted a search on the court record on 24 January 2022.

19.Firstly, the orders were ascertainable from court records and nothing in the pleadings or evidence suggests that their existence was deliberately concealed. The correspondence sent by Mr Cleves to the Plaintiff showed that the Plaintiff was duly informed of the settlement terms and costs issues at the material time.

20.In respect of the 4 letters the Defendant produced by affidavit dated 23 April 2026, the Plaintiff alleges that he did not receive them except the letter dated 28 November 2014 (“Letter 4”). On the Plaintiff’s own admission, Letter 4 was explained to him in person by Mr Limbu Saran and Mr Rai Bijay during a meeting on 7 December 2014 (see paragraph 9 of the Plaintiff’s affirmation dated 22 July 2026). The Plaintiff confirmed at the hearing that he had received the settlement sum through the Legal Aid Department by 3 separate instalments in 2014, and that the Plaintiff and the Defendant, at the time, were dealing with the costs issue subsequent to the settlement of DCCJ 313.

21.In Letter 4, it was clearly mentioned that the settlement was on party and party costs and that there were costs order made against the Plaintiff in DCCJ 313. Paragraphs 2 and 3 of the Letter stated that

“2. We have heard from the other side about the matter of their costs due under three of the Orders against you, one of which was for a set amount and the others for costs to be agreed if possible…

…

3. ….Whilst it is true that we did agree a settlement of party & party costs with the other side, it was at a figure well below what we considered reasonable. We could have gone to taxation to try to get more. We were informed by our Law Costs Draftman, …it was unlikely that the taxing Master ..would have given us more than the amount we had been offered….”

22.The Plaintiff was clearly made aware of the existence of costs orders made against him in DCCJ 313 on 7 December 2014 at the latest. Therefore, the Plaintiff knew or ought to have known of these orders and their effect. The facts giving rise to a negligence claim was therefore known or readily ascertainable at the time when Letter 4 was explained to him. The knowledge that there was a real possibility that the damage was caused by the Defendant’s conduct arose then : Kensland Realty Ltd v Tai, Tang Chong (2008) 11 HKCFA 237, paragraphs 15 to 19.

23.Applying ss 4 and 31 of the Ordinance, the Plaintiff’s claim would have been time-barred, at the latest, by 7 December 2020 which is well before the commencement of the Plaintiff’s claim.

24.In respect of the settlement concluded on 4 February 2014, the Plaintiff was aware of the settlement sum and the term of party and party costs. The Plaintiff had received the settlement sum through the Legal Aid Department in 2014. Had the Plaintiff questioned the adequacy of the settlement, he could reasonably have sought independent advice at that time. Any negligence or omissions on the part of the Defendant were contemporaneous with the time the settlement was concluded.

25.Applying Kensland Realty, the real possibility that the settlement outcome was attributable to the Defendant’s conduct existed when the settlement was concluded. The limitation period therefore expired in February 2020, or 7 December 2020 at the latest when Letter 4 was explained to him.

26.As to section 22 of the Limitation Ordinance, “disability” is given a narrow legal meaning. “Disability” refers to a lack of mental ability, that is to say, not having sufficient intellectual ability to make a rational decision, by reason of being a minor or mentally disabled or suffering from mental disorder : See Chan Kam Nun v Immigration Department [2018] 1 HKLRD 1251. Reading it together with Order 80 of the Rules of the High Court, it refers to a minor or a mentally incapacitated person, the latter being someone who, by reason of mental disorder or handicap, lacks sufficient intelligence to make rational decisions and to manager his property and affairs.

27.For section 22 to apply, the Plaintiff has to show that he was under such a disability at the material time and that the medical evidence supports a finding of incapacity to manage property and affairs as opposed to the mere existence of a mental health condition.

28.I agree with the Master that the evidence falls short on both fronts. First, there is no contemporaneous medical evidence from February 2014 diagnosing the Plaintiff as a mentally incapacitated person within the statutory meaning. The medical records from that period refer to follow-up treatment for mixed anxiety and depressive disorder. Secondly, the medical reports filed in March 2023 demonstrate a history of anxiety and depression managed with medication but nothing shows that the Plaintiff lacked capacity to manage his property or affairs.

29.In fact, as the Master pointed out, the report dated 14 November 2022 records that his mood was stable, that he exhibited no psychotic symptoms, and that he managed his medication independently. In the circumstances, the Plaintiff has failed to prove that he was under a disability within the meaning of section 22 at the material time.

30.On the basis of the evidence before me, the Plaintiff’s causes of action as pleaded in the Statement of Claim accrued more than six years before the commencement of these proceedings. These claims are plainly time-barred. I am satisfied that it is a plain and obvious case for striking out.

Orders

31.I, therefore, make the following orders,

(1)  the Plaintiff’s appeal be dismissed;

(2)  an order nisi that costs of the Plaintiff’s appeal, including any costs reserved, be paid by the Plaintiff to the Defendant to be taxed if not agreed. The order nisi shall become absolute unless the parties apply by summons to vary the said order within 14 days from the date hereof.

The Plaintiff appeared in person

Mr Cleves Simon Henry, of Krishnan & Tsang, appeared for the Defendant