Wong Yu Cho Rolly T/a The Hong Kong Museum Of Stone Sculpture & Asian Art v Lam Kwok Man

CourtDistrict Court (Hong Kong)
Judgment Date31 January 2008
Judgement NumberDCCJ5422/2006
Subject MatterCivil Action
DCCJ005422/2006 WONG YU CHO ROLLY t/a THE HONG KONG MUSEUM OF STONE SCULPTURE & ASIAN ART v. LAM KWOK MAN

DCCJ5422/2006

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5422 OF 2006

------------------------------

BETWEEN

WONG YU CHO ROLLY trading as
THE HONG KONG MUSEUM
OF STONE SCULPTURE & ASIAN ART
Plaintiff
and
LAM KWOK MAN Defendant

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Coram : H H Judge Marlene Ng in Chambers (Open to the Public)

Date of Hearing : 25th April and 12th September, 2007

Date of Handing Down Decision : 31st January, 2008

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DECISION

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I. Background

1. The Plaintiff, who acts in person in the present action, was a former client of Messrs T K Cheung & Co (“Firm”). The Defendant is a practising solicitor who was formerly employed by the Firm as an associate solicitor until 15th April 2006. Mr Cheng Tze Kui (“Mr Cheng”), who is not a party to the present action, was at all material times a partner/principal of the Firm.

2. The Plaintiff commenced HCA2456/2005 (“HC Action”) against Mr Cheng and the Firm on 5th December 2005. He also acts in person in the HC Action. The Plaintiff commenced the present action against the Defendant on 1st November 2006.

3. By a summons dated 5th February 2007 (“Summons”), the Defendant applied to (a) strike out the Statement of Claim (“DC Statement of Claim”) and dismiss the present action on the ground of abuse of process of the court, (b) alternatively stay the present action pending disposal of the HC Action on the ground that the two actions are based on the same alleged facts and causes of action, and (c) extend time for filing/service of the Defence (if applicable) for 14 days from the determination of the application.

4. By a further summons dated 15th March 2007, the Defendant applied to amend the Summons to add a further alternative relief, ie to strike out so much of the DC Statement of Claim that alleges negligence by the Defendant (which Mr Baillie, solicitor for the Defendant, clarified as referable to paragraphs 5-12 and 17-18 of the DC Statement of Claim) (“DC Negligence Claim”) on the ground of abuse of process of the court. Such alternative relief will limit the Plaintiff’s claim to damages for the Defendant’s alleged physical assault/battery against him on 19th October 2005 (“Assault Claim”).

5. The following matters are averred in the Statements of Claim in both actions :

(a) The Plaintiff was/is the proprietor and chief executive officer of The Hong Kong Museum of Stone Sculpture & Asian Art.
(b) In respect of HCA1570/2001 commenced by the Plaintiff against Frank Muller Watchland SA and Muller Francesco Dit Franck (“1570/01 Action”), the Plaintiff was represented by another firm of solicitors until 7th January 2004 when the handling of such litigation was transferred to the Firm “attention [Mr Cheng]/[the Defendant], with the mutual agreement that no payment is needed to make until the cases ended” (“No Payment Agreement”). (I note from both Statements of Claim that the Firm also acted for the Plaintiff in HCA3272/2001 and DCCJ7307/03 commenced by him against Wong Wai Chung trading as Wing Hing Loong Provision Co and others and against American Express International, Inc (“AE”) respectively (“3272/01 and 7307/03 Actions”), which together with the 1570/2001 Action are referred to as the “Actions” below).
(c) At first, Mr Cheng claimed to be busy and asked the Defendant to temporarily follow up on the Plaintiff’s “cases”.
(d) The Plaintiff complained to Mr Cheng that the Defendant did not pay attention to his “cases” and requested change of handling solicitor for “all [his] cases”. Mr Cheng did not make such alternative arrangements and because of the No Payment Agreement the Plaintiff had no choice but to deal with the Defendant.
(e) The Defendant was negligent in handling “all [the Plaintiff’s] cases” during the period of 18 months from January 2004 to June 2005 when the Firm acted for the Plaintiff, including refusing to cooperate with the Plaintiff or follow his instructions, failing to notify the Plaintiff of written communications with opposing parties, failing to follow up on the Plaintiff’s cases, and the specific events on 18th and 19th October 2005 in respect of the 7307/03 Action.
(f) In respect of the 7307/03 Action, a hearing was scheduled before Master S T Poon at 11:30am on 19th October 2005 (“Hearing”). On 18th October 2005, the Plaintiff telephoned to ask the Defendant whether he “reply and notice” AE yet, and he said he had not. When the Plaintiff queried when he would do so, he hanged up. The Plaintiff left telephone messages for him at the office, but there was no reply. The Plaintiff also left telephone messages for him at his mobile telephone that evening (i) asking how much costs AE should pay for seeking leave to file new witness statement and (ii) asking him to return call. The Defendant did not reply, so the Plaintiff left telephone messages for Mr Cheng reminding him of the Hearing and instructing him to reply to AE and to strike out AE’s application for costs.
(g) At 8:30am on 19th October 2005, the Plaintiff had a telephone conversation with Mr Cheng reminding him to attend the Hearing to strike out AE’s application for costs. Mr Cheng was not in Hong Kong, so the Plaintiff asked him to tell the Defendant to attend the Hearing to represent him. Mr Cheng refused and hanged up. There was no justification for such refusal to attend the Hearing.
(h) At about 11:20am, the Plaintiff and his personal assistant Mr Ma Chuen Chor (“Mr Ma”) attended the District Court for the Hearing. The Defendant walked in angrily. He sat in front of the Plaintiff and signalled the Plaintiff to go away. Master S T Poon ordered the parties have a discussion in the conference room before the Hearing. Inside the conference room, the Plaintiff asked the Defendant why he did not return call and whether he was ready to represent the Plaintiff at the Hearing. The Defendant became angry/upset, gestured violently, and spoke in a loud/abusive manner. He pushed and slapped the Plaintiff with some documents. The Plaintiff and Mr Ma were shocked and scared. The Plaintiff complained to Master S T Poon about the Defendant’s conduct and said he would represent himself.
(i) The Plaintiff trusted Mr Cheng, the Firm and the Defendant because they were legal professionals “and should help me to handle my legal procedures like defence and claim the defendants”. But the Plaintiff was left to act for himself, which put him in a difficult/disadvantaged position. In respect of the trial of the 7307/03 Action on 1st and 2nd December 2005, “[the Plaintiff’s] solicitor” and the Firm refused to represent the Plaintiff at the last minute, so he had to transfer all his cases to another firm. But due to insufficient time for such transfer and to prepare responses, he lost his cases.

6. In the DC Statement of Claim, the Plaintiff additionally averred the following :

(a) At 7:00am on 19th October 2005, the Plaintiff asked Mr Ma to send an urgent letter by fax for the attention of Mr Cheng informing him of developments and asking him to prepare skeleton arguments.
(b) The Plaintiff also asked Mr Ma to prepare a letter (which was despatched by fax at 9:40am on 19th October 2005) to the Firm setting out the chronology of events that morning and asking Mr Cheng to send a representative to attend the Hearing.
(c) The Plaintiff claimed he was the victim who suffered damages “by the Defendant …… and [Mr Cheng] of the case. It is due to the negligence, irresponsibility and misconduct of the Defendant …… mishandling all my cases, i.e. [the Actions], that the Plaintiff has suffered and continue to suffer irreparable financial damages, economic loss and special damages, ……”
(d) The Plaintiff also claimed the Defendant should compensate for “the loss of his convenience, honour and rights, damages to [his] goodwill and reputation, and the damages and special damages ……”

7. In the Statement of Claim in the HC Action (“HC Statement of Claim”), the Plaintiff additionally averred the following :

(a) The Plaintiff paid HK$3,000.00 to Mr Cheng as costs on account and “the rest of the cost agreed to be on account with [Mr Cheng]” (ie No Payment Agreement). On 10th August 2004, the Plaintiff sent a letter (“10/8/04 Letter”) to notify the Defendant of the No Payment Agreement “between [the Plaintiff] and his boss [Mr Cheng]”. Further, “[letters] date 30th October, 2005 & 5th November, 2005” did not mention the Plaintiff owed the Firm any fees, which fact the Firm was fully aware of and understood.
(b) Mr Cheng was in breach of the No Payment Agreement, and the Plaintiff would claim his “financial damages, economic loss and special damages, and all the cost and expenses from [the Firm] and [Mr Cheng] and [the Defendant of the present action] for responsibility to handle all [his] cases. Re [the Actions]”.
(c) The Plaintiff said the trial dates in the 7307/03 Action were fixed without his instructions when Mr Cheng was fully aware that more time was required to prepare the evidence and witness statements. He instructed Mr Cheng to seek more time for such purpose so he would have a fair trial. He was surprised when “a hearing date would final be fixed or agreed to be fixed”.
(d) At the last minute, the Firm refused to represent the Plaintiff in the 7307/03 Action, thus forcing the Plaintiff to transfer the handling of such case to another firm. After 21st November 2005, the Plaintiff kept on trying to contact the Firm to take back his papers for the 7307/03 Action because an appeal and the trial were scheduled for 29th November 2005 and 1st and 2nd December 2005 (ie
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