Tsui Koon Wah v. Lam King Yuen and Others

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

____________

BETWEEN

____________

Before:  Hon Chung J in Chambers

Date of Hearing:  19 July 2006

Date of Handing Down Decision :  8 August 2006

______________

D E C I S I O N

______________

Introduction

1.This is the plaintiff’s application for me to recuse from dealing with this action altogether.  The summons itself does not state the grounds of the application; but the plaintiff’s written submission dated 18  July 2006 has.  They can be summarised as follows:-

(a) delay in handing down the decision dated 7 April 2006 has demonstrated my discrimination against the plaintiff;

(b) I have shown bias against the plaintiff in determining the defendants’ application to strike out;

(c) I participated in the making of a false instrument, namely, the sealed order dated 7 April 2006.

2.In order to better understand the above grounds, and to examine whether they have substance, the background leading to this application has to be briefly mentioned.

Brief History of this Action

3.The plaintiff commenced this action in March 2003, some 2-1/2 years before 24 October 2005 (the hearing date of the plaintiff’s summons, on which the said grounds of this application (especially the first ground) are based).

4.Decisions handed down earlier concerning interlocutory applications taken out in this action have quoted the following passages in the decision of Stone J dated 20 October 2004 when giving a summary of what this action is concerned with:-

“4. This is a defamation case, which has its origin in the employment, by the Government, of Mr Tsui, the plaintiff, as a Contract Social Security Assistant at the Mongkok Field Unit.

5. Mr Tsui commenced work at this Unit on 21 May 2002, and his contract was to run until 31 March 2003.  However, he was dismissed from this employment on 3 January 2003 absent payment in lieu of notice or accumulated annual leave.

6. To put the matter as neutrally as possible, it is fair to say that Mr Tsui did not enjoy a harmonious working relationship with employees of this Field Unit, and a number of ‘incidents’ arose, resulting in accusation and counter-accusation.

7. In the event, Mr Tsui was summarily dismissed from his employment, and it is this dismissal which has led to his mounting two actions in the High Court : first, the existing action against four members of staff, wherein he seeks damages for defamatory statements he alleges were made against him, and second, a suit against the Government for wrongful dismissal, which I am told is HCA 2938 of 2003.  Mr Tsui has told the court that he recognizes the risk of adverse costs orders which may be made against him in such litigation, but that he anticipates possible bankruptcy as ‘a reality, not a strategy’”.

5.From November 2003 (if not earlier) to April 2006, various interlocutory applications have been taken out (mostly by the plaintiff).  More than a fair share of these were dismissed by the court.  An appeal to the court of appeal by the plaintiff also turned out to be unsuccessful.  Needless to say, these matters have taken up time.

6.The way in which the plaintiff’s case has been pleaded does not appear to promote the speedy resolution of the substantive merits of this action either.  Up to now, the statement of claim is in its re-re-re-amended version.  By 24 October 2005:-

(1) the re-re-re-amended statement of claim ran up to about 19 pages;

(2) the re-amended defence consisted of about 28 pages;

(3) the re-re-amended reply has about 43 pages.

7.The court of appeal in a decision handed down on 18 July 2005 has described the plaintiff’s pleading (the then re-amended statement of claim (about 28 pages long) and re-amended reply (about 41 pages)) as “long and … prolix” (para. 2 thereof).

Ground 1: Delay

8.The decision which was handed down on 7 April 2006 arose out of a hearing which took place on 24 October 2005 (the time lapse was slightly over 5 months (but see also para. 20 below)).

9.That decision (consisting of about 17 pages) dealt with 4 summonses taken out by the plaintiff and one taken out by the defendants.  The plaintiff’s summonses in short asked for:-

(a) a variation of the costs order nisi dated 5 September 2005;

(b) leave to re-re-re-amend the statement of claim and to re-re-amend the reply;

(c) an extension of the time stipulated in para. 3 of the order dated 5 September 2005 (for amending the reply);

(d) the restoration of the pre-trial review for hearing.

10.The defendants’ summons sought a striking out of the re-re-re-amended statement of claim and re-re-amended reply as being an abuse of the court’s process.

11.The gist of the plaintiff’s present complaint is that:-

“despite … [having been told] that the Plaintiff’s witnesses were decreasing in number day by day … Chung J delayed the [handing] down of the decision … ” (para. 1, plaintiff’s written submission);

and:-

“No reason was given … why [other cases] should be done prior to the action herein.  In premises, Chung J discriminated against Plaintiff’s claim … ” (para. 1, plaintiff’s written submission).

12.Any delay in the court’s process should be avoided because it may result in injustice to the litigants.  No attempt will be made herein to contend otherwise.  As Bokhary PJ observed in the Court of Final Appeal:-

“The appellants succeed without having to rely on their complaint of delay developed in a balanced argument which Mr Philip Dykes SC presented and Mr Harris adopted.  So all that I would say about delay is this.  A heavy workload can make delay difficult to avoid.  So can other factors.  Even so, it always remains important to give decision expeditiously” (Yeung May Wan v. HKSAR (2005) 8 HKCFAR 137, para. 166).

Having said so, unfortunately delays do sometimes appear.  But when they appear, one does not immediately conclude that there has been bias on the part of the court.

13.The essence of the present complaint is not so much the delay itself but that the plaintiff has alleged been discriminated against.  The evidence said to support the complaint is the fact that other decisions have been handed down (or pronounced) from 10 March 2006 to 1 April 2006.  On the other hand, the decision in question was only handed down on 7 April 2006.

14.In this connection, the plaintiff has referred to 9 decisions in his written submissions.  However, a closer look at these decisions shows the following:-

(1) 6 of the said decisions related to hearings which took place earlier than 24 October 2005 (in some cases, the hearings took place in August 2005);

(2) the time taken to hand down the above decisions was therefore not any shorter than that taken to hand down the decision dated 7 April 2006, counting from the time of their respective hearings;

(3) of the remaining 3 decisions, all were relatively short ones (consisting of 8 to 10 paragraphs each).  One dealt with the discharge of an ex parte injunction, the other dealt with a refusal of leave to appeal against a tribunal decision and the third dealt with a ruling given during the course of trial.

There is no valid basis for thinking the plaintiff has been treated any less favourably than other litigants.

15.Hence, none of the above matters, relied upon in the plaintiff’s written submission, can reasonably give rise to an appearance of bias or discrimination (where none in fact exists).

16.Further to the above, some of the events which took place between 24 October 2005 and 7 April 2006 should be mentioned.

17.On 18 November 2005, the plaintiff sought to place further submissions before the court as regards his summons taken out on 18 October 2005.  This was refused for the obvious reason of procedural impropriety.

18.On 27 January 2006, the plaintiff wrote to the Chief Judge of the High Court (“CJHC”) and enclosed a summons which asked for the above 5 summonses to be heard by another judge of the High Court.  In a letter dated 8 February 2006, clerk to CJHC (“clerk to CJHC”) informed the plaintiff that the plaintiff had not in the said letter indicated the grounds in support of his summons.

19.The plaintiff later made an affirmation dated 24 February 2006.  This was followed by a letter dated 9 March 2006 from clerk to CJHC (the relevant parts of which stated):-

“I refer to my letter dated 8 February 2006 and to the affirmation subsequently made by you dated 24 February 2006.  I have been asked by [CJHC] to reply …

It seems clear to [CJHC] that most of your complaints center on the fact that decision has not yet been given by the Hon. Chung J …

[CJHC] will ask Chung J to hand down the decision in those matters as soon as possible.  His Lordship had asked Chung J to delay doing this pending your affirmation which has now been provided … ”.

20.These events are mentioned because, as a result of the plaintiff’s summons enclosed in his letter dated 27 January 2006, work on the decision has in effect to be suspended from 8 February to 9 March 2006.

21.Notice of handing down decision was given on 1 April 2006.

22.In view of the above matters, this complaint has no substance.

Ground 2: Actual Bias in Deciding the Defendants’ Summons

23.This complaint is set out in the plaintiff’s written submission as follows:-

“As regards the Defendants’ application by summons filed on 18 October 2005, the Defendants had not identified which paragraphs of Plaintiff’s Reply were abusing the process of the court on the summons itself, on the skeleton submission or at the hearing of 24 October 2005.  Accordingly, Plaintiff cannot have made submission. … Therefore, Plaintiff did not have a fair hearing, which was a favour to the Defendants and shows the bias of Chung J” (para. 2).

24.The basis of the defendants’ said summons has been set out in the defendants’ skeleton submissions:-

“Most of the paragraphs which are ordered to be struck out (as per the Order dated 5/9/2005 herein) from the Plaintiff’s pleadings, however, remain intact.  In the premises, the Re-Re-Re-Amended Writ of Summons and Re-Re-Amended Reply represent an almost complete disregard of the Order dated 5/9/2005 herein and thus an abuse of the process of the Court” (para. 12).

25.The parts of the decision dated 7 April 2006 related to the defendants’ said summons are para. 15 to 26 (the relevant parts of the plaintiff’s pleadings were set out therein in a comparison table after para. 23).

26.In fact, in relation to the re-re-re-amended statement of claim, I determined that it contained no offending averments: para. 24, decision dated 7 April 2006.

27.Parts of the re-amended reply have been struck out for the simple reason that they were repetitions of averments earlier struck out by the order dated 5 September 2005.  Whether they were so can easily be determined by comparing the contents of the struck out averments against those of the re-amended reply.

28.In the premises, this complaint has no substance either.

Ground 3: Forged Order

29.This part of the plaintiff’s written submission is difficult to understand.  It appears to be as follows.

30.Subsequent to the handing down of the decision on 7 April 2006, the defendants’ solicitors wrote to the court on 10 April 2006.  This resulted in the appearance of para. 7A(g), 53(b) and 61(b), re-amended reply in the sealed order (as part of the averments which were struck out), even though they have never been referred to in the decision dated 7 April 2006.

31.Thus, so the plaintiff contends, the parts of the sealed order dated 7 April 2006 which state:-

“AND UPON the application of the Defendants by way of Summons issued on 18^th October 2005

AND UPON hearing the Plaintiff appearing in person and the Solicitors for the Defendants”

are “false” within the meaning of s. 69(a)(vii), Crimes Ordinance (Cap. 200) which provides:-

“an instrument is false if it purports to have been … made or altered on a date on which or place at which or otherwise in circumstances in which it was not in fact made or altered”.

This is because the defendants’ application was in fact made by way of the letter dated 10 April 2006.  Further, there was no hearing of that application after 24 October 2005.

32.Before dealing with the complaint, it should be pointed out that, even in the sealed order, there is no reference to para. 53(b) or 61(b), re-amended reply.  The plaintiff’s complaint must have been about the inclusion of para. 56(b) and 60(b) thereof: see the plaintiff’s letter dated 23 May 2006.  This decision will proceed on such basis.

33.What in fact occurred between 7 April 2006 and 27 May 2006 (filing of the sealed order) in relation to the said sealed order can be summarised as follows:-

(a) on 10 April 2006, the defendants’ solicitors wrote to inform the court there were omissions in the decision;

(b) on 18 April 2006, the plaintiff wrote to inform the court there were errors in the decision;

(c) on 19 April 2006, the defendants’ solicitors responded to the plaintiff’s letter dated 18 April 2006;

(d) on 19 April 2006, the plaintiff responded to the letter dated 10 April 2006 of the defendants’ solicitors.  One of the points made was the court was already functus officio;

(e) on 24 April 2006, the plaintiff responded to the letter dated 19 April 2006 of the defendants’ solicitors;

(f) after considering the above correspondence from the parties, a Corrigendum was pronounced on 9 May 2006;

(g) further, the court sent a letter to the parties on 17 May 2006 enclosing a draft order (which was based on the respective draft orders prepared by the parties) and inviting their comments (to be given within 7 days);

(h) the defendants’ solicitors made their comments on 19 May 2006;

(i) the plaintiff made his comments on 23 May 2006.  The argument that the court was already functus officio was repeated;

(j) after considering the parties’ comments, the order was approved on 25 May 2006.

(All the letters referred to in sub-para. (a) to (e) and (h) to (i) above have been copied to the other party).

34.It is trite law that the court has jurisdiction to reconsider the matter before entry of decision or the drawing up of an order: Hong Kong Civil Procedure 2006, para. 20/11/8 and 42/1/19.  The plaintiff’s argument that the court was functus official is simply wrong.

35.In the light of the factual background set out above, unless an unreasonably narrow meaning is given to the parts of the sealed order referred to in para. 31 above, the complaint that the sealed order is  “false” is unmeritorious.  I do not consider it proper to give such a narrow meaning to those parts of the sealed order.

36.In these circumstances, this part of the application also has no substance.

Conclusion

37.By reason of the above matters, the application to recuse is dismissed.

Other Matters

38.The plaintiff should understand that his perception that the court is biased against him is unwarranted, and have no proper basis.  Litigants should understand that they may succeed in their cause, or they may fail.  That only reflects upon the merits of their case.  Merely because the court has determined the case in the other side’s favour does not mean that the court is biased against the unsuccessful litigant.

39.To continue to adhere to such a perception may not be to the plaintiff’s benefit.  He is reminded that, although it is nowadays uncommon for someone to be held in contempt for “scandalising the court”, such a cause still exists in law: see Arlidge, Eady & Smith on Contempt (2005) 3^rd Ed., para. 5-204 to 5-274; Borrie & Lowe: The Law of Contempt (1996) 3^rd Ed., pp. 335 to 364; Secretary for Justice v. Oriental Press Group Ltd. [1998] 2 HKC 627.

Costs Order Nisi

40.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of this application be paid by the plaintiff to be taxed if not agreed.

Plaintiff acts in person and present

Mr Michael Cheung of Messrs Liu, Chan & Lam, for the Defendants