Iu Po Cheung v. The Commissioner for Census and Statistics

HCA 753/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 753 OF 2007

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BETWEEN

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Before: Hon A Cheung J in Chambers

Date of Hearing: 10 June 2008

Date of Judgment: 10 June 2008

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J U D G M E N T

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1.This is an appeal from an order made by the Master striking out the amended statement of claim.

2.Before I come to deal with the matters that have already been alleged in the amended statement of claim, I should deal first with an application to amend the amended statement of claim which has been struck out, by the inclusion of a new paragraph 75A.  The new paragraph 75A is set out in its entirety in paragraph 8 of counsel’s skeleton which, I should add, came fairly late in the day.  That notwithstanding, I will focus on the merits of the proposed amendment. 

3.This proposed amendment seeks to plead a cause of action based on misfeasance in public office.  It alleges that the Commissioner for Census and Statistics was guilty of acting in bad faith, dishonesty and abuse of his power with subjective knowledge that his actions would probably injure the plaintiff.  It also alleges that the Commissioner specifically intended to injure the plaintiff or, alternatively, knew that, in the ordinary course, injury to the plaintiff would follow, even that was not his purpose.  Alternatively, the paragraph alleges that the Commissioner was recklessly indifferent as to whether or not his actions would cause any injury to the plaintiff.  Needless to say, all these are extremely serious allegations against the Commissioner. 

4.I regret to say that the proposed paragraph 75A contains no material facts or particulars to support these very serious allegations, nor can one find any supporting materials in the amended statement of claim itself – not to mention that the paragraph does not say what other matters (if any) in the amended statement of claim that the plaintiff relies on to support the very serious allegations.

5.In my view, this is wholly unacceptable.  Not only is counsel ignoring in total the requirement under the Code of Conduct issued by the Bar Council that allegations such as the serious allegations that I have just described must not be pleaded even with instructions from a client unless there are reasonable materials to substantiate them, these unparticularised and serious allegations simply have no place in the pleading according to the authorities that counsel says he is aware of.  I have, in particular, in mind the case of Tang Nin Mun v Secretary for Justice [2000] 2 HKLRD 324 where the Court of Appeal discussed the cause of action based on misfeasance in public office and the materials required to substantiate it in great detail. 

6.The lack of material facts and particulars in support of these serious allegations that are relied on for the cause of action based on misfeasance in public office, is fatal to the proposed amendment.  As I say, I regret that these allegations have been made at all.  For the reasons that I have given, I refuse leave to the plaintiff to amend his amended statement of claim.  I will now hear the appeal on the basis of the amended statement of claim.

[Submission on the appeal against Master Yu’s order dated 1 February 2008]

7.As to the appeal based on the amended statement of claim, the causes of action pleaded in the amended statement of claim are breach of contract, breach of statutory duties and negligence.  Mr Mui, during his argument, agreed with the Court that, in fact, at all material times, the employer of the plaintiff was the then Hong Kong Government, and subsequently, the Government of the Hong Kong SAR.  His employer was not the Commissioner for Census and Statistics, so there could be no valid complaint for breach of contract of employment against the Commissioner. 

8.Mr Mui, having conceded the above, told the Court that he had nothing further to say in relation to this appeal or the other causes of action set out in the amended statement of claim.  So, for that reason alone, I think the appeal must be dismissed.  By not making further submissions in relation to the appeal, the plaintiff must be taken to have abandoned it for reasons of his own. 

9.It remains for me to add that I have read the transcript of the Master’s reasons that he gave when he decided to strike out the amended statement of claim.  As I say, I have not had the benefit of hearing fully the appeal today for the reasons that I have explained but, on the basis of what I have read and heard, I tend to think that the Master has given very good reasons and has come to the correct decision. 

10.In any event, for the reasons explained, I make an order that the appeal be dismissed.  Costs to the defendant on a party-and-party basis, to be taxed if not agreed. 

Mr Louie Mui, instructed by Eddie P L Law & Co, for the plaintiff

Mr Edward P S Shum, instructed by the Department of Justice, for the defendant