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Ng Hoi Sze v Yuen Sha Sha And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
CourtCourt of Appeal (Hong Kong)
Judgment Date10 December 1999
Citation[1999] 3 HKLRD 890
Judgement NumberCACV94/1999
Subject MatterCivil Appeal
CACV000094/1999 NG HOI SZE v. YUEN SHA SHA AND ANOTHER

CACV000094/1999

CACV 93/1999
CACV 94/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 93 and 94 OF 1999

(ON APPEAL FROM DCCJ 10953 OF 1997)

BETWEEN
NG HOI SZE Plaintiff
AND
YUEN SHA SHA 1st Defendant
FUNG KA FAI 2nd Defendant

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Coram : Hon. Godfrey & Rogers, JJ.A. in Court

Date of hearing : 24 November 1999

Date of handing down judgment : 10 December 1999

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J U D G M E N T

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Godfrey. J.A. :

1. I will ask Rogers, J.A. to give the first judgment.

Rogers, J.A. :

Introduction

2. These are two appeals by the Plaintiff in this action. They arise from a decision of H.H. Judge To given on 9 February 1999 following a hearing on 26 January 1999 whereby he refused the Plaintiff leave to amend the claim in the action and struck out the action.

Background

3. The Plaintiff Ng Hoi Sze and the 1st Defendant, Yuen Sha Sha shared a room No. 427 in a hostel at Shaw College, Chinese University. On 17 March 1997, the 1st Defendant discovered a video recorder which, unbeknown to her had been placed in the room and had made recordings of the 1st Defendant whilst she was undressing. It was quickly discovered that the video recorder belonged to one Mr. Tse Chi Pan who was the boy friend of the Plaintiff. The 1st Defendant made a complaint as a result of which Tse was expelled from the University and the Plaintiff was expelled from the hostel. The matter was then referred to the Equal Opportunity Commissioner and there followed an action by Yuen Sha Sha, the 1st Defendant in this action, against Tse in the District Court which was heard by H.H. Judge H.C. Wong. The decision is reported at [1999] 1 H.K.C. at p. 731. Judgment was given for $50,000 damages, $20,000 exemplary damages and $10,000 aggravated damages and Tse was ordered to make an apology.

4. The proceedings in this action were commenced on 2 June 1997 by Ng Hoi Sze, who, as referred to above, had been expelled from the hostel, against the 1st Defendant and her boy friend, Fung Ka Fai, the 2nd Defendant. The 2nd Defendant was also a student, but at another University. The claim was one in nuisance. The claim was limited to HK$10,000 or alternatively, damages to be assessed by the Court.

5. In the skeleton argument provided by Mr. McCoy, S.C. appearing on behalf of the Defendants, the case is argued that a consideration of the history of this action might lead to the conclusion that this action was a nuisance action brought perhaps in revenge for the complaints which had been made by the 1st Defendant against the Plaintiff and her boy friend and perhaps on other occasions, the action was prosecuted with a view to persuading the 1st Defendant not to pursue her claim in the case heard by H.H. Judge Wong. Indeed, the judgment in that case records one of the incidents which forms a basis for that submission. There is no need in these proceedings to make any finding in that regard but it can be observed that when the 1st Defendant's solicitors wrote to the Plaintiff on 24 March 1998 drawing attention to their view that the Plaintiff's claim in this action was bad, the reply letter from the Plaintiff to the solicitors gives an indication that the Plaintiff was fully intent on embarrassing the 1st and 2nd Defendants.

6. On 26 January 1999, H.H. Judge To heard an application on the part of the Plaintiff that she be at liberty to amend the particulars of claim in the action and the subsequent application on the part of the Defendants that the Particulars of Claim be struck out as, amongst other things, it disclosed no cause of action and that the action should be dismissed. The Judge below refused the application to amend and struck out the Particulars of Claim and accordingly dismissed the action. These appeals lie from his decision.

Amendment

7. The amendment sought by the Plaintiff is to introduce a claim for...

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