Chan Ching Ho,Owen v. Poon Yuk King

DCCJ 1802/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1802 OF 2012

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Before: His Honour Judge Andrew Li in Chambers

Date of Hearing: 12 August 2014

Date of Decision: 12 August 2014

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DECISION

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1.This is an application made by the plaintiff to re-re-amend his statement of claim by putting in a new cause of action of misrepresentation, including a claim of fraudulent and/or reckless misrepresentation.

2.The plaintiff’s claim in this case is basically for a business deal with has gone wrong.  The plaintiff now alleges that the defendant knew that the defendant did not have the requisite licence to sell the product in Canada.  The plaintiff claims that the defendant was confident that their application to the authority would be successful and that the application would be granted, sooner rather than later.

3.The plaintiff says that it was based on those misrepresentations that the plaintiff had entered into the agreement.

4.The writ of this case was issued on 31 May 2012 with the statement of claim filed on the same day.

5.The statement of claim has been amended on 2 previous occasions with the re-amended statement of claim made on 29 August 2013.

6.By that time, it has been clearly pleaded as an implied term of the agreement that “all products marketed and sold by the (Canadian company) shall comply with all the relevant licensing requisites, that the (Canadian company) is entitled to sell and market its products according to the governing law and regulations.”

7.The matter was further pleaded in the re-amended statement of claim under §13A.

8.What the plaintiff is now applying by way of amendments, although amounting to a new cause of action, in my view actually arose out of the same facts or substantially the same facts as the original cause of action.

9.This is allowed by the Rules of the District Court.

10.Under Order 20, rule 8 of the RDC, it empowers the court to grant leave to amend the pleadings even though the application for such an amendment is made after the expiry of any relevant period of limitation current at the date of the issue of the writ: see §20/8/7 of the Hong Kong Civil Procedure 2014 and section 35(6) of the Limitation Ordinance.

11.The plaintiff’s current proposed amendments to the re-amended statement of claim in my view are matters arising out of the same facts or substantially the same facts.  They are not matters raised for the first time.  It had been mentioned in the re-amended statement of claim back in August 2013 and the plaintiff’s witness statement which was filed in March 2014.

12.Given the above, I consider it is only fair and just to allow all the issues in dispute to be placed in front of the trial judge.  Therefore, I would allow the proposed amendments as contained in the plaintiff’s latest version handed up to the court at the beginning of today’s hearing, ie including the new additional wordings regarding the alleged fraudulent and/or reckless misrepresentation.

13.I therefore will grant an order in terms of §§1 to 5 of the plaintiff’s summons.

14.In addition, I will allow the defendant’s leave to file a supplemental witness statement in respond to the issue within 10 days of this Order and leave to allow her to make any further discovery of documents in relation to the issue by way of filing a supplemental list of documents also within 10 days from the date of this Order, if so advised.

15.The trial date of this action fixed to commence on 25 August 2014 will remain unchanged.

Mr Hylas Chung, instructed by Hoosenally & Neo, for the plaintiff

Mr Eddie Lee, of Eddie Lee & Company, for the defendant