莫偉翔 v. 香港神托會 and Others

HCA 2597/2005 and HCA 2351/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTIONS NOS. 2597 OF 2005 & 2351 OF 2003

(Consolidated pursuant to the Order of Master Lai dated 21 March 2012)

________________________

________________________

________________________

DECISION
________________________

1.The plaintiff (“Mok”) claims damages for alleged defamation that took place on 23 December 2002. At the time, the 3^rd, the 4^th and the 5^th defendants were Form 5 teachers (“the Teachers”) of the 2^nd defendant (“the School”). The 1^st defendant (“the Society”) was the sponsoring body of the School.

2.On 25 February 2013, Master Levy heard 2 summonses: the defendants’ application to strike out the claim and the application by Mok to strike out the defence.  The master allowed the defendants’ application, struck out the claim and dismissed the action.  She accordingly dismissed Mok’s application.  Costs of both applications were awarded to the defendants, to be taxed if not agreed, with certificate for counsel.  Mok now appeals.

3.The pleadings and documents are in Chinese.  Mok and Mr Wong appearing for the defendants also addressed the court in Chinese, whilst both of them have lodged English written submissions.  As indicated at the end of the hearing, I am handing down this decision in English.

BACKGROUND

4.Mok is said to have been qualified as a barrister in Hong Kong.  However the present action concerns his other capacity as a private tutor, as it was in such capacity that he came across some of the students of the School[1] during the period between December 2002 and January 2003.

5.In December 2002, the School received information and complaint from students who felt disturbed by the alleged unusual and inappropriate behaviour of Mok during his private tuition.  The School enquired into the complaint with some of the students involved.  For that, there was apparently meeting between the School and Mok as well.

6.On 23 December 2002, the School had the Teachers contacted the students who attended Mok’s private tuition[2], drawing their attention to the complaint.  That became the subject matter of Mok’s claim in these actions.  The School subsequently also reported the matter to the Education Bureau as well as the police.  Criminal investigation and prosecution followed.

7.In June 2003, Mok commenced HCA 2351/2003 (“the 2003 Action”) against the Teachers for defamation, and claims damages in the sum of HK$800,000.  Mok did not proceed with the action thereafter.

8.In December 2005, Mok commenced another action, HCA 2597/2005 (“the 2005 Action”), against the Society and the School on the basis of the same allegations for damages in the sum of HK$8,000,000.  No further step had been taken since the end of June 2006.  The notice of intention to proceed filed in March 2008 was followed by no actual step.

9.In January 2012, Mok filed a notice of intention to proceed in both actions.  At the end of February 2012, he applied for the consolidation of the 2 actions.

10.On 21 March 2012, the 2 actions were consolidated with the 2005 Action as the leading action and the defendants in the 2003 Action, ie the Teachers, joined as the 3^rd to the 5^th defendants in the consolidated action.  Directions were given for the filing of pleadings.

11.Mok filed his consolidated statement of claim[3], which is 206-page and 520-paragraph long.  His claim against the defendants became one for damages in the sum of not less than HK$80,000,000[4].

12.By summons filed on 20 August 2012, the defendants applied for the statement of claim to be struck out and the action to be dismissed.  In the meantime, the defendants filed their defence without prejudice to the striking out application.

13.Mok responded by summons filed on 24 October 2012, applying to strike out the defence of the defendants.

14.As mentioned, the summonses were argued on 25 February 2013, which ended in the striking out of the claim and the dismissal of the action.

THE APPEAL

15.According to the Notice of Appeal filed on 7 March 2013, Mok is challenging the master’s decision to strike out his claim and to dismiss his action.  No mention was made about the master’s decision on his application to strike out the defence. The order being sought on appeal is leave to amend his consolidated statement of claim, including by way of substitution.

16.The reasons for the master’s decision are available in the form of the transcript of that hearing.  However an appeal against the master’s decision takes the form of a re-hearing of the defendants’ application before the master.  Reference to and, where appropriate, adoption of the reasons of the master is permissible but not mandatory: see Hong Kong Civil Procedure 2015 at §58/1/2.

17.No further evidence may be received on the hearing of such appeal except on special grounds: O.58, r.1(5) of the Rules of the High Court (“RHC”). Mok has indeed filed an affirmation for the purpose of the appeal, but it is short and contains mere arguments.

THE ALLEGED DEFAMATORY STATEMENTS

18.The alleged defamatory statements made by the Teachers respectively[5] on 23 December 2002 were set out and repeated in different compositions of wordings all over the statement of claim.  It would appear that Mok especially takes exception as to the statements allegedly made by the Teachers as summarised in §463 of the statement of claim:

“John謹此指出，一般的誹謗案誹謗内容多數比本案的短一些，法律上一字一句都要寫清楚，但本案的情況是多位被告人多次的自由發揮，被告人每次的發揮也或多或少字句有所不同，所以主要字眼大都被指出便應達到舉證要求，如John處補習「時間長」、「學費貴」、「很難拒絕」、「不易離開」、「使學生成績大大地退步」、「催眠」學生、「落藥」在「飲品（及食物）内」供學生飲用進食、「非法開葯」給學生吃、為人非常「咸濕」、常對女學生「摸手摸腳」、並常在房間内「關上門」與女學生於「尷尬位置」做「穴位按摩」、聲稱「所有學生都有病」，而「只有John或John的朋友才能治癒這些病症」的、「常常低貶同學們學校的老師」，並囑咐同學們「在學校不必用心學習，只要在John的補習用心便可」、負面指「精神病康復者」有問題或不太好等等，大部分字眼都被大多數的聽者指出，舉證要求早已達到了。”

19.It is for Mok as the plaintiff to plead what he says to be the meaning of these words and expressions for the purpose of the cause of action.  Merely for the purpose of the readers of this decision, I set out my literal reading of the effect of those words and expressions:

(1) Mok was said to have told the students and they were sick, and only he and his friends could heal them.  He was said to have given medicine to the students.

(2) Mok was said to have performed massage on embarrassing spots of the bodies of the female students behind shut doors.

(3) Mok’s tuition hours were said to have been unduly long and tuition fees charged were unclear.

(4) Mok was said to have encouraged the students not to pay attention to their day classes at school but to his private tuition only.

(5) The students were said to have felt pressure and difficulty in trying to leave the tuition.

(6) Negative remarks were said to have been made about Mok as a rehabilitating or rehabilitated psychiatric illness patient.

20.In their defence filed without prejudice to the striking out, the defendants put Mok to proof of the precise alleged defamatory statements on which he bases for the claim.  In any event, they put forward the defence of qualified privilege.

THE DEFENDANTS’ APPLICATION

21.The defendants invoked the statutory jurisdiction of the court under O.18, r.19 of the RHC and its inherent jurisdiction for striking out the claim and dismissal of the action.  All the sub-rules of O.18, r.19(1) were relied on.  The following 7 grounds are set out in the summons:

(1) The claim against the Society discloses no reasonable cause of action.

(2) Mok has no intention of bringing the action to a conclusion, and thus an abuse of process.

(3) The claim is frivolous as it is obviously unsustainable.

(4) The claim is vexatious in that the quantum has been inflated 100-fold since the 2003 Action.

(5) The claim for special damages lacks basis and is hopeless.

(6) The pleading consists of scandalous allegations and accusations, which are liable to be struck out.

(7) The pleading contains irrelevant materials which tend to cause prejudice, embarrassment and delay to a fair trial, and are liable to be struck out.

22.I start with ground (2).

ABUSE OF PROCESS (GROUND (2))

23.The delay and inaction on the part of Mok in the past years mentioned above are emphasized.  The notice of intention to proceed filed in 2008 was followed by no real action.  Up to the second notice of intention to proceed filed in January 2012 in both actions, it had been 9 years of inactivity in the 2003 Action and over 5 years since the last step was taken in the 2005 Action.  Of the time lapsed, 2 years and 9 months fell into the post-Civil Justice Reform era.

24.The Court of Final Appeal in Re Wing Fai Construction Co Ltd [2012] 1 HKLRD 589 revisited the following relevant principles and had the following to say:

(1) Striking out is a remedy granted only in plain and obvious case.

(2) Abuse of the process of the court is the foundation for the exercise of the jurisdiction to strike out for delay.  Mere delay would not suffice, and abuse must be shown.

(3) Abuse could take many forms.  Inordinate and inexcusable delay causing real prejudice to a defendant would be an abuse.

(4) For contumelious conduct of the plaintiff which is shown to have amounted to clear abuse, proceedings could be struck out even where prejudice could not be shown.

(5) In the majority of the cases, however, prejudice would often be an extremely relevant factor.  The most compelling form of prejudice as a result of inordinate and inexcusable delay would be the substantial risk that a fair trial becomes impossible (Birkett v James).  Delay might also aggravate the prejudice caused by the existence of an interim injunction pending trial.

(6) Warehousing of claims with no intention of bringing the proceedings to a conclusion or wholesome disregard of the rules or court orders also amounts to abuse, which justifies the striking out (Grovit v Doctor).

(7) The conduct of the parties remains relevant to the question of abuse and the overall justice of the case.  Post-CJR rules on case management and their underlying objectives apply to existing proceedings.  All parties to the proceedings had the obligation to prosecute the proceedings and assist the court in furthering the underlying objectives, and therefore it would be highly relevant to consider any failure on the part of the parties.  There is no place anymore for the defendant to adopt the attitude of “letting the sleeping dogs lie”.  If it is sought to be argued that time has dimmed the memories of witnesses, the court will usually expect to know what steps the defendant has taken to take instructions or proof or to locate the witnesses.  The court would assess the extent of the prejudice with reference to the nature of the defence.

(8) Besides looking at the matter from the parties’ perspectives, the court would also take a proper regard to the administration of justice after the implementation of the CJR in furtherance of the underlying objectives of ensuring fair distribution of court resources.  Along the same line, the non-expiry of the limitation period should no longer militate against an order for striking out, when abuse is clearly demonstrated.

25.Mr Wong submits that the delay on the part of Mok was inordinate.  In view of the history of litigation mentioned above, Mok could not possibly argue otherwise.  Mok did not actually seek to explain the delay.  He attempted to do so during the hearing, but that could not be proper if not in the form of an affidavit.  In any event, I find the delay was inexcusable.

26.The prolonged inaction on the part of Mok in both actions has been so substantial, if not exceptional, as to justify an objective view that Mok has warehoused the claim with no intention of bringing that to a conclusion[6].  That alone as an abuse of process justifies striking out even without establishing resultant prejudice to the defendants.

27.The defendants do complain about prejudice as a result of the delay.  By 2012, it had been 10 years since the incident on 23 December 2002 that Mok complains about.  The Teachers claim inability to recall the precise words and expressions used during the conversations with the students at the time.  The then Form 5 students involved obviously had graduated for years and it is said that some of them could not be located.  A fair trial, the defendants say, has become impossible.

28.In line with the principles set out in Wing Fai (above), it is relevant to consider the conduct not just of the plaintiff but the defendant who complains about the delay, especially with respect to post-CJR delay.  As mentioned, more than 3 years had elapsed since the new court rules have come into effect.  The court no longer finds favour in an entirely passive attitude of the defendant. With respect of complaint about lapse of memory or loss of witness as a result of the plaintiff’s delay, the court would expect to see what steps the defendant has taken and could have taken to alleviate himself of such resultant difficulties.  But this has to be considered in the circumstances of the present case.

29.In the present case, it is Mok’s burden to prove defamation, including the precise words and expressions used by the teachers that are said to be defamatory on 23 December 2002.  He was not privy to the conversation between the Teachers and the students, and would have to rely on the evidence of the students to establish the alleged defamation.  It is not primarily for the defendants to secure evidence from the students in respect of what they spoke to the students for the purpose of his claim.

30.Of the teachers, only the 5^th defendant seems to have made a statement to the police back in February 2007.  That statement contained references to what the student concerned complained about Mok but no record of the precise words and expressions used by the 5^th defendant in speaking to the students subsequently on the day in question.  The prejudice to the defendants due to the delay should not be underestimated.

31.Whilst for once, step was indeed taken upon the notice of intention to proceed in 2012, the delay by then has been so substantial that this part of the defendants’ complaint remains a strong consideration in considering whether it is just to allow the case to proceed.  From the administration of justice perspective, which is one of the relevant considerations, that Mok would have no chance of commencing a new action on the basis of the same allegations, as the same would have been time-barred by now, would not stand in the way of striking out, if a clear case of abuse due to delay is made out.

NO REASONABLE CAUSE OF ACTION (GROUND (1))

32.The application pursuant to O.18, r.19(1)(a) concerns the claim against the Society. It is said that such claim discloses no reasonable cause of action.

33.A reasonable cause of action, for this purpose, is one that has some chance of success.  Whether that is the case depends entirely on what are pleaded.  Evidence is not admissible: see O.18, r.19(2).

34.The claim against the Teachers is based on what they allegedly said to the students in question.  The claim against the School would appear to be based on vicarious liability as the Teachers’ employer.  But the basis of the claim against the Society is indeed not discernable from the statement of claim.

35.The Society is an organisation providing educational, medical and social services in Hong Kong[7]. As the sponsoring body of the School but without any involvement in the daily operation or any control over or responsibilities towards the performance of the Teachers in the course of their daily work, the Society could hardly be liable for the alleged conduct of the Teachers in the episode.  In court, Mok attempted to link his complaint against the social worker of the School with the Society so as to found vicarious liability on the Society.  Yet as a matter of pleading, nothing of that sort is made out.

36.The claim against the Society discloses no reasonable cause of action, and I come to the same conclusion as that of the master.  Such claim ought to be struck out.

UNSUSTAINABLE CLAIM (GROUND (3))

37.The defendants say that the claim is frivolous in that it is bound to fail in view of the defence of qualified privilege.

38.Mok argues that the defendants must be taken to have admitted the defamation so as to rely on qualified privilege.  Otherwise they would have raised the defence of justification.  In my view, this is not necessarily so, at least not for the present purpose.  All that the defendants argue is that even assuming that defamatory statements were made in the course of such conversation between the Teachers and the students as alleged, such conversation was protected by qualified privilege.

39.Gatley on Libel and Slander (11^th ed) at §14.4[8] has the following to say in respect of the defence of qualified privilege:

(1) It is in the public interest that persons should be allowed to speak freely on occasions when it is their duty to speak, and to tell all they know or believe, or on occasions when it is necessary to speak in the protection of some self or common interest.

(2) In such cases, no matter how harsh, hasty, untrue, or libellous the publication would be but for the circumstances, the law declared it privileged because the amount of public inconvenience from the restriction of freedom of speech or writing would far out-balance that arising from the infliction of private injury.

(3) The principle on which these cases are founded is a universal one, that the public convenience is to be preferred to private interests and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.

See also the statement of the principle by the Court of Final Appeal Albert Cheng & Anor v Tse Wai Chun Paul [2000] 3 HKLRD 418 at §55.

40.To avail of the defence, some duty or interest must exist in the party to whom the communication is made as well as in the party making it.  The duty or interest may be common to both parties, but this is not essential.  It is enough if there is a duty or interest on one side, and a duty or interest, or interest or duty on the other: see Gatley (above) at §14.6.

41.I have no difficulty in finding the existence of such a relationship between the Teachers and the students as a matter of fact.  The Teachers had both the duty and interest to communicate with the students on matters that they honestly believed to be concerning the interest and welfare of the students.  The students had the corresponding interest, if not duty as well, to receive such information and advice.

42.I also have no difficulty in finding that this was the kind of occasion on which the Teacher found it necessary to so communicate with and advise to the students concerned.  The information and complaint about Mok’s behaviour to the students during the private tuition fell fairly and squarely within such matters that would be of concern to the Teachers and the School.  Such concern about the interest and welfare of the students gave rise to the duty to communicate with and to advise them timely.

43.The communication is expected to be frank and uninhibited.  The defence of qualified privilege would not fail, simply because Mok’s such behaviour, subject matter of the complaint that the Teachers and the School had received, turned out to be unproven or even untrue.

44.Mok referred to a number of cases in support of his argument that the Teachers had no such duty.  Considering the particular context and circumstances of those cases, I do not agree the same could be said about what happened in the present case.

45.What the defence does not protect is malice.  In Albert Cheng (above), Lord Nicolls of Birkenhead NPJ put it simply (at 433D):

“……The rationale of the defence of qualified privilege is the law’s recognition that there are circumstances when there is a need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source: see Reynolds v Times Newspapers Ltd [1999] 3 WLR 1010 at p.1017. Traditionally, these occasions have been described in terms of persons having the duty to perform or an interest to protect in providing the information. If, adopting the traditional formulation for convenience, a person’s dominant motive is not to perform this duty or protect this interest, he is outside the ambit of the defence……”

46.This refers to actual malice: see Gatley at §14.6[9].  In this respect, Gatley cites (at §17.17[10]) what Lord Diplock said in Horrocks v Lowe [1975] AC at 150:

“indifference to the truth of what [the defendant] publishes is not to be equated with carelessness, impulsiveness or irrationality in arriving at a positive belief that it is true. The freedom of speech protected by the law of qualified privilege may be availed of by all sorts and conditions of men. In affording to them immunity from suit if they have acted in good faith in compliance with a legal or moral duty or in protection of a legitimate interest the law must take them as it finds them. In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and fail to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be ‘honest’, that is, a positive belief that the conclusions they have reached are true. The law demands no more.”

47.Gatley continues to say[11], citing what were said in various other cases:

(1) The law of qualified privilege requires the defendant to use the occasion honestly in the sense of using it for a proper purpose; but it imposes no requirement that the defendant use the occasion carefully.

(2) Lack of care for the consequences of exuberant reporting is not malice.

(3) The only question is whether the defendant did, in fact believe what he said, and not whether a reasonable man of rational understanding would have shared that belief.

(4) If gross and unreasoning prejudice causes the defendant honestly to believe what a more rational or impartial person would reject or doubt, he does not thereby lose the protection of the privilege.

(5) Malice is to be carefully distinguished from other states of mind such as carelessness, excessive zeal, pig-headedness, stupidity, or a failure to arrive at a rational conclusion.  In practice, a claimant has to demonstrate that the words were published without any honest belief in their truth or that the defendant was genuinely indifferent to their truth or falsity.

48.There must be assertion and, more importantly, evidence of actual malice in line with the principle set out in Albert Cheng (above) and Horrock (above) before the defence of qualified privilege could be vitiated.

49.It does not appear that Mok is advocating any principle contrary to the above cited high authorities.

50.There is no suggestion that the Teachers and Mok had any history or reason for any disagreement, let alone conflict, prior to the incident that might have given rise to ulterior motive on their parts.  To begin with, it was the information and complaint by some of the affected students in early to mid-December 2002 that alerted the Teachers and the School of what had allegedly happened between Mok and the students in his private tuition.  What the School and the Teacher decided to do was to inform the students concerned of the complaint and to give them consequential advice.

51.In principle, the decision of the School to communicate with or to advise the students timely on matters believed to be important to the students, even without thorough investigation, per se could not be faulted.  In fact, as evidenced by various contemporaneous police statements, the Teachers and the School indeed enquired into matter together with the school social worker.  The students involved were interviewed and meeting with Mok was held during the 2 weeks prior to the decision to inform the students of the complaint received.

52.It was on this basis that the School and the Teachers claim to have acted on their belief that the students concerned should be informed of the complaint received and be advised of the care that needed to be taken of themselves on 23 December 2002. This is far removed from the scenario where certain belief was so absurd that it could not possibly be honestly held.  Nor could it be said that the School and the Teachers were consciously indifferent at all to the veracity of complaint received.

53.The major complaint of Mok is that the School made no report to the police until after 23 December 2002.  But there is indeed evidence as to how the time had been spent before the matter was reported to the police and the Education Bureau.  The police was actually involved in the first week of January 2003[12].  In any event, as a matter of principle and fact, this complaint of Mok hardly has significant bearing on whether the School and the Teachers had acted on the complaint by the students with honest belief.

54.It is for Mok to establish malice on the part of the School and the Teachers in order to impeach the defence.  Notwithstanding accusations all over the consolidated statement of claim, it is clear from the basic sequence of events between the receipt of the information and the communication with the students concerned on 23 December 2002 that the protection of qualified privilege over the occasion could hardly be impeached.  I agree with Mr Wong that this is clear and obvious in the circumstances.

VEXATIOUS CLAIM (GROUNDS (4) & (5))   

55.The defendants complain that the claim is oppressive in that the repeated inflation of the amount of claim cannot possibly be justified.  The claim against the Teachers lodged in 2003 was for damages in the sum of HK$800,000.  When the claim was lodged against the School and the Society in 2005 on the basis of the same allegations, it became one for damages in the sum of HK$8,000,000.  As a consolidated claim against the defendants in 2012, the claim became one for damages in a sum of not less than HK$80,000,000.  This is 100 times the original quantum.

56.It is not that a litigant cannot adjust the amount of his claim. But the repeated multiple inflation of the amount claimed was so substantial that it can hardly be rational and justifiable in the circumstances of the case.  I share Mr Wong’s observation that this cast unfavourable light on the genuineness of the claim.

57.The amount claimed consists of that for special damages, exemplary damages and aggravated damages.  Yet no particulars are set out. The defendants complain that it is embarrassing to expect them to plead to that, and is thus prejudicing a fair trial.  In my view, this is probably the lesser of the possible complaint in this respect.  The relatively more significant concern goes to the integrity of the specific claims.

58.Besides financial loss, Mok asserts various damage and claims damages characteristic of a personal injury claim[13]. O.18, r.12(1A) sets out the requisite documents to be served with the statement of claim.  That this case has not been listed in the special court list does not absolve Mok as the plaintiff from such obligation.

59.Further a claim for exemplary damages must be specifically pleaded together with the facts relied on with proper particularity.  Such basis being different from a claim for compensatory damages, the facts relied on will for the most part be different to those relied upon in support of a claim for aggravated damages: see Hong Kong Civil Procedure 2015 at §18/8/12.

60.Mr Wong also points out that the statement of claim contains voluminous scandalous accusations against the defendants that are irrelevant to the issues in dispute.  This will be discussed below.

SCANDALOUS AND IRRELEVANT ALLEGATIONS (GROUNDS (6 & (7)))

61.Mr Wong set out the following examples of scandalous remarks against the various parties concerned:

(1) Accusing the School and staff:

“被告校方一些教職員因心理問題而對John有所不滿……惡意地僞装一衆校長主任老師社工等連最基本正常人查詢不太複雜的事情的能力也沒有……無良地編造不合理的、荒謬可笑的説法去誣陷John……又向因精神及心理問題而向校方求助的朱燕鈴同學公報私仇……使（陳恩因同學）向警方及法庭提供假證供……誣陷John……（被告人）可恥地「拖延戰術」……”[14]

(2) Describing the School staff as「野蠻」; 「白痴」; 「無恥」[15]

(3) Naming the 5^th defendant as “淫張”[16]

(4) Describing some of his students as “全級最靚”[17]

(5) Accusing the 3^rd defendant:

“蘇sir……可恥地論證，可謂「死雞撑飯蓋」「蝦細路」「蝦家長」「打横來」「野蠻」「白痴」……「不擇手段」”[18]

(6) Describing the school social work as「非常搞笑」「非常無聊」「非常白痴」「非常喪」「白痴到盡」「喪到你唔信」 「痴線」[19]

(7) Accusing the defendants’ solicitors:

“其律師「瘋癲地」在未能提出合理抗辯理由的情況下對法庭及John送交一份充滿歧視與侮辱的抗辯書”[20];

“其律師「瘋癲地」在未能提出合理抗辯理由的情況下對法庭及John送交一份充滿歧視與侮辱的「無理」「無聊」並「痴線」的抗辯書及一份更甚的更進一步歧視與侮辱原告人莫偉翔的「承認（痴線的）事情的要求書」……”[21]

(8) Scandalous and irrelevant remarks such as

“「精神病康復者」比「變態」「淫蟲」好得多呢！”[22]

“「淫者」「喪者」「懵者」或會這樣「白痴」”[23]

62.The above words and expressions speak for themselves.  I agree they have no legitimate places in a proper and relevant pleading for the purpose of the present dispute.

63.The defendants also complain that the statement of claim is prolix and contains substantial portions of irrelevant, immaterial and unnecessary materials.

64.O.18, r.7(1) provides that every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits.  The other rules to which this rule is subject to do not apply.

65.For the claim on the basis of the alleged defamation that took place on 23 December 2002, a statement of claim like that of Mok in the present case basically flouts this court rule to the extreme.  Mr Wong gives examples of plea of irrelevant or immaterial matters[24], references to settlement[25], evidence[26] and submissions[27].  I agree with Mr Wong that a pleading like that tends to prejudice, embarrass and delay a fair trial, assuming that it reaches that stage.

66.Scandalous, irrelevant and immaterial materials in a pleading would normally be addressed by the striking out of the offensive parts.  In appropriate cases, leave may be given to amend the pleading.  Indeed Mok seeks by the notice of appeal to amend the statement of claim, but the suggestion that it would be by way of substitution is alarming.  In any event, despite the order sought, there is no proposed draft amendment offered for consideration.  More fundamentally, in view of the abuse and cumulative integrity problems of a prolix pleading like this, the pleading is beyond reasonable salvage.

AFTER THE HEARING

67.Decision was reserved after the hearing.  Yet a few days later, Mok wrote to the court, seeking to adduce further evidence and directions compelling the defendants to provide further particulars and evidence of their contentions.  He also sought leave to make further submissions.  He claimed to have done so pursuant to legal advice.  This court replied, pointing out, among other things, that it was wrong for Mok to do so ex parte and without leave.  In any event, additional evidence, which was not contained in the affidavits before the master, should not be received: see O.58, r.1(5) of the RHC.

68.Mok responded by taking out yet another summons on 20 August 2013 (“the Post-hearing Summons”) for leave to seek another hearing to further argue his appeal and, for that purpose, to rely on what was said to be further evidence.

69.At the end of the hearing on 25 September 2013, I dismissed the Post-hearing Summons with costs to the defendants in any event, to be taxed on indemnity basis, if not agreed, with certificate for counsel.  As indicated, I also give my reasons for that decision now.

70.Mok sought to have a further hearing so that he could adduce new evidence to show that defendants and their legal representatives, counsel included, have lied to the court in that report to the police was not filed until after the alleged defamation.  The further hearing, he said, should be held so that the senior police officer and a student involved could be cross examined in court.  Alternatively if the defendants and their legal representatives would admit the alleged lie, then he would suggest the parties to negotiate for settlement.

71.As mentioned, no further evidence is admissible for the purpose of an appeal from the master, unless on special grounds.  Such special grounds are the following conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 that must be satisfied:

(1) The evidence could not have been obtained with reasonable diligence for use at the hearing below.

(2) The evidence must be such that, if adduced, it would probably have an important influence on the result of the case, albeit not decisive.

(3) The evidence must be such as is presumably to be believed.

72.As mentioned, the incident led to criminal investigation by the police and prosecution against Mok.  References were made in the statement of claim, and relevant documents were disclosed for the purpose of the application before the master. I do not accept that the so-called new evidence could not have been sought and adduced by then.

73.The so-called new evidence could not have an important influence on the result of the case either.  As discussed, in the context of the present case, report to the police or police investigation prior to the decision of the School and the Teachers, in discharge of their duty, to timely inform the students concerned of the complaints against Mok and to give the necessary advice to the students on such matter that obviously concerned their interest and welfare was not the pre-requisite to the protection of the occasion by qualified privilege.  Also as discussed, the so-called new evidence would not have proved the actual malice required to deprive the protection.

74.It has not even got to the stage of considering whether the so-called new evidence is such as presumably to be believed.  The reason is that Mok was not seeking to adduce actual evidence of the senior police officer or the student that he referred to as the new evidence.  Mok was requesting that the police officer and the student would attend the further hearing, if so fixed, to give oral evidence and be cross-examined.  Suffice it to say that leave to cross-examine deponents on affidavits for the purpose of a striking out application is unusual and not readily granted.

75.None of the conditions was satisfied.  Hence my dismissal of the application.  On behalf of the defendants, costs of and occasioned by the Post-hearing Summons of Mok are sought to be taxed on an indemnity basis.  I was satisfied that Mok’s conduct of proceedings by this summons is completely groundless and constituted abuse of process of the court.  Hence my costs order.

CONCLUSION

76.In conclusion, the delay on the part of Mok in prosecuting the claim was tantamount to abuse of process.  The claim against the School discloses no reasonable cause of action.  The claim against the other defendants is bound to fail for the defence of qualified privilege.  The pleading suffers from all sorts of integrity problems so that it is only just to strike out the pleading.  One or all of the above cause me to come to the same conclusion of the master in striking out the statement of claim and dismissing the action.

ORDER

77.The appeal is dismissed.  Mok shall pay the defendant’s costs of and occasioned by the appeal, including any costs reserved.  Costs shall be taxed, if not agreed, with certificate for counsel.  This costs order is nisi and shall become absolute in the absence of application in 14 days for variation.

The plaintiff, in person

Mr Simon WONG, instructed by Messrs Kao Lee & Yip for the 1^st, 2^nd, 3^rd, 4^th and 5^th defendants