Chan Kin Lam v. Sunray Cave Ltd

HCA1997/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1997 OF 2006

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BETWEEN

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Before : Mr Recorder Yuen, SC in Court

Date of Hearing : 21 September 2009

Date of Decision : 21 September 20009

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D E C I S I O N

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1.This is the defendant’s application to strike out the plaintiff’s Amended Statement of Claim. This strike out application is made on the eve of the trial, which was scheduled to commence today. The basis of the defendant’s strike out application can be summarised as follows.

2.In the answer provided by the plaintiff to the defendant’s request for interrogatories filed on 12 December 2008, one of the questions raised was “In which hour on or around 29 April 2005 was the 2005 Contract signed?” The answer is as follows :

“I can only [sic] it was signed between the hour %:00 p.m. to 7:00 p.m. but I cannot remember the exact time.”

3.Following this answer, there is the defendant’s 2^nd Interrogatories to the plaintiff. The relevant question asked by the defendant is “Please clarify the obvious typographical error.”

4.By an Order made by Chu J dated 31 July 2009, it was ordered that :

“Unless by 4:00 p.m. on 7^th August 2009, the Plaintiff answers Question 2(a) of the 2^nd Interrogatories dated 13^th July 2009, the Plaintiff’s Amended Statement of Claim dated 18^th January 2007 be struck out and the Defendant be at liberty to enter judgment against the Plaintiff for its costs in this action;”

5.In compliance of Chu J’s Order, the plaintiff filed the Affirmation of Tam Kwong Wah, Kent (“Mr Tam”). Mr Tam is the solicitor of the solicitors firm acting on behalf of the plaintiff. In paragraph 2 of Mr Tam’s Affirmation, he explained that he did prepare the earlier Affirmation made by the plaintiff in answer to the interrogatories and he made some typographical errors in the answer of 2(e). The reference to the part reading as “%:00 p.m. to 7:00 p.m.” is a typographical error. He said the correct answer should be “I can only remember it was signed between the hour 5:00 p.m. to 7:00 p.m. but I cannot remember the exact time”.

6.The defendant was not satisfied with the Affirmation filed by Mr Tam. By a letter dated 6 August 2009, they complained to the plaintiff’s solicitors saying that they did not accept that the Affirmation of Mr Tam was made in compliance with the order made by Chu J as it was not made by the plaintiff as required under the order.

7.By a letter dated 13 August 2009 the plaintiff’s solicitors responded by saying that Mr Tam has the relevant knowledge and instructions since he dealt with the earlier affirmation of the plaintiff made on 12 December 2009. And then the letter said “Mr Tam should have better knowledge than the plaintiff in regard to the typographical error made.” The letter concluded by saying that for avoidance of doubt the plaintiff’s solicitors had invited the plaintiff to provide an affirmation to the same effect and the plaintiff’s solicitors was informed at the time that the plaintiff was out of Hong Kong and would supply the affirmation by 20 August 2009.

8.As it turned out, the plaintiff did not make an affirmation confirming the typographical error until 18 September 2009. In relation to this latest affirmation by Mr Chan, Mr Wong acting on behalf of the defendant contended that it was defective because it did not say the affirmation was made to the best of the knowledge of Mr Chan although Mr Wong pointed out that they are not relying on this particular defect.

9.In response to the defendant’s strike out application the plaintiff’s main contention is fwofold. First of all, he maintained that the Affirmation by Mr Tam was sufficient to comply with Chu J’s unless order. Alternatively, they relied on the latest Affirmation by Mr Chan, saying that it was sufficient to deal with the problem.

10.Having heard submissions from both sides, I agree with the contentions made by the plaintiff. I accept that in providing answer to interrogatories, normally the plaintiff himself should make the affirmation. However I do not think this rule is an inflexible rule. There could be exceptions and whether or not the exceptions apply depend on the circumstances. In the instant case there cannot be any doubt that the error in question is a typographical error. In fact the defendant accepted this. When they served the 2^nd interrogatories (as I have quoted above),the defendant asked the plaintiff to clarify the “obvious typographical error” and of course this typographical error took place when the affirmation of the plaintiff in answer to the original interrogatories was prepared. As explained by Mr Tam in paragraph 2 of his Affirmation, he was the one who prepared the affirmation and therefore I agree with the plaintiff that Mr Tam was in the best position to clarify the typographical error.

11.Mr Wong made the point that whatever Mr Tam sought to say in his Affirmation would be hearsay because Mr Tam himself did not have personal knowledge as to the time when the 2005 contract was signed. I do not think the question of hearsay is really the point here. Once we accept that this is a typographical error, then the point really is, as the 2^nd interrogatories itself framed, the clarification of the typographical error. We are not here seeking to ascertain the truth of the instructions given to Mr Tam, rather the point is what was the instructions given when the plaintiff’s affirmation was prepared and why the instructions was not correctly reflected in the plaintiff’s affirmation. For these reasons I think Mr Tam, the solicitor acting on behalf of the plaintiff, was in the best position to explain the typographical error.

12.I would go further. Even if I am wrong in accepting the plaintiff’s contention that Mr Tam was in a position to clarify the typographical error and that there were technically a breach of the Order of Chu J, both side accepted in such a scenario the court has a discretion to decide whether or not to strike out the plaintiff’s Amended Statement of Claim.

13.We are now starting the trial of this action. The failure, if any, to comply with the Order of Chu J is a very minor and, if I may say, technical, one. Balancing the interests of the defendant against the interests of the plaintiff, I do not think this is the appropriate relief that the court should grant in the overall scheme of things. It was a matter which the defendant would be perfectly entitled to test when cross-examining the plaintiff in the course of this trial.

14.For these reasons I dismiss the defendant’s application. The trial should proceed.

15.In light of the ruling that I have just made, I would order costs to be paid by the defendant to the plaintiff.

Mr Tony Ko, instructed by Messrs Christopher K.Y. Wong, for the Plaintiff

Mr Simon Wong, instructed by Messrs Wongs, for the Defendant