Polytime Holdings Ltd v. Chan Man Yu Henry
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HCA 1737/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1737 OF 2011 ------------------------- BETWEEN
------------------------- Before : Hon Yam J in Chambers Date of Hearing : 23 November 2011 Date of Judgment : 23 November 2011 ------------------------ J U D G M E N T ------------------------- 1.This is an application for summary judgment on a matter which apparently can be described as a storm in a teacup. But after perusing all the papers before me, it involves certain serious matters in terms of the past District Council Election on 6 November 2011. 2.On 9 October 2011, the plaintiff being a limited company discovered in the afternoon that two of the defendant’s election posters were put up on the plaintiff’s premises. The plaintiff is the owner of the premises but that premises were not rented out at that time. Thus there was a roller gate there closing the premises and the posters were on the roller gate. 3.The evidence given by the plaintiff was in the form of affirmation of one Mr Chan Man Hoi being the supervisor employed by the plaintiff. It is not clear who was the owner of the plaintiff. Apparently there was no company search of this limited company before me. In any event that was what happened in the afternoon on 9 October and he brought the matter to the plaintiff’s attention. It is not clear from Mr Chan’s affirmation who in the plaintiff knew about this. As the plaintiff is a limited company, so it must be someone of the plaintiff’s company that was given this piece of information. 4.In the next morning on Monday 10 October 2011, the two posters had already been removed. The plaintiff said that it was not the plaintiff or their plaintiff’s employees or supervisor or whoever related to the plaintiff that removed those posters. But again at about noon time of Tuesday 11 October 2011, Mr Chan said it was again brought to the plaintiff’s attention that two new posters similar to the first two posters had been glued or fastened or attached to the roller shutter at the entrance of the plaintiff’s premises. It is not clear from Mr Chan’s affirmation as to who brought this to the attention of the plaintiff. He was then immediately directed by the plaintiff to go to the premises to inspect them. Upon arrival he found the same situation and he took a photograph. He removed one of the two new posters from the roller shutter and then reported the matter to the manager of the plaintiff, Mr Edwin Li. 5.If this posters were put up by the defendant or his agent, the defendant would obviously be in breach of the election rules i.e. section 104A of Public Health and Municipal Services Ordinance, Cap 132. 6.In the evening of 11 October 2011 top management of the plaintiff inter alios decided to file complaints with the Electoral affairs Commission and some days later on 1 November 2011 the returning officer replied to the plaintiff. The returning officer found that the defendant had been in breach of paragraphs 7.16 and 7.20 of the guidelines and the matter had been referred to the police for further action. 7.In the meantime, on 12 October 2011, the plaintiff’s solicitors Messrs Tai, Tang & Chong prepared a letter addressed to the defendant for the plaintiff’s approval and upon receipt of plaintiff’s approval, Messrs Tai, Tang & Chong sent the letter to the defendant on the same day. The defendant said he received the letter on or about 13 or 14 October. According to the plaintiff, on 14 October the plaintiff had already given instructions to Tai, Tang & Chong to prepare and issue a writ and a statement of claim against the defendant. This is, in my view, a very highly efficient operation. It is also premised upon Tai, Tang & Chong’s so-called letter before an action that they said categorically :
In other words, Tai, Tang & Chong’s instructions were to issue legal proceedings against the defendant and not to warn the defendant not to commit the same act of trespass onto the roller shutter of the plaintiff’s premises. Usually solicitors will give a warning to the intended defendant by saying that if he continues such misconduct, the solicitors will issue legal proceedings against the defendant. But here it was not worded in such a way. It was a letter warning the other side that they had already got instructions to issue legal proceedings for damages and injunction. They had in fact done so and that was how these proceedings began. 8.Incidentally the one in‑charge of the whole operation in Tai, Tang & Chong was the senior partner Mr Francis Chong and Mr Chong happened to be a competing candidate against the defendant. Thus the defendant said he had grounds to believe, apart from the fact that posting of the posters on the roller gate was not done by his agent, that the whole operation was masterminded by the other camp, namely Mr Chong. He based his interence on Mr Chong’s efficiency in causing the writ to be issued and statement of claim filed. He said that the writ and the statement of claim were prepared on the same day as the plaintiff gave instructions to Tai, Tang & Chong. 9.He also said that the proceedings were motivated by the status of Mr Chong, who was a competing candidate to the defendant. The defendant said categorically in his affirmation that the whole operation was a scheme devised by his opponents including Mr Chong. 10.In this application, which is an Order 14 summons for summary judgment, the plaintiff has to establish that there are no issue to be tried. In other words :
11.In my view the defendant has a good defence. Without going into the merits of the allegation regarding Mr Chong’s competing status, it is at least open to the defendant to argue that he did not cause the posters to be put on the plaintiffs’ premise. 12.From all the evidence and papers before me, I cannot say there is no triable issue at all. Thus I do not consider the plaintiff is entitled to summary judgment on the ground that there are no triable issues in this case. 13.Accordingly I consider that the defendant is entitled to unconditional leave to defend the action. 14.The defendant shall have leave to file and serve an amended defence. 15.The defendant’s costs shall be in the cause.
Mr Elliot Fung, instructed by Messrs Tai, Tang & Chong, for the Plaintiff Mr Earnest W.H. Cheung, instructed by Messrs Au Yeung, Cheng, Ho & Tin, for the Defendant | |||||||||||