The Personal Representative of the Estate of Chan Chuen, Deceased v. Forestside Ltd

HCA 2055/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2055 OF 2011

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REASONS FOR DECISION

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Decision on 29 December 2015

1.On 29 December 2015, I refused the plaintiff’s application to adjourn the 12‑day trial listed for hearing commencing on 8 January 2016.

2.I said reasons for my decision would be handed down in due course which I now do. 

Introduction

3.On 23 December 2009, the Director of Legal Aid (“the Director”) issued a Legal Aid Certificate to Mr Chan Chuen (陳尊) (“Chan”) for claiming adverse possession of certain pieces of land and assigned So Lung & Associates as solicitors.

4.The writ was issued on 2 December 2011.  The Statement of Claim was drafted by Mr Patrick Szeto of counsel and was dated 15 February 2012. 

5.Witness statements were exchanged in August 2013.

6.On 28 October 2014, Hon L Chan J fixed the trial to be heard on 26 January 2015, with 15 days reserved.

7.Chan was admitted to hospital shortly before the trial was to start and he passed away on 26 January 2015

8.By a notice dated 27 January 2015, the Director gave notice that the legal aid certificate referred to in para 3 above had been discharged.

By a notice dated 6 February 2015, the court gave notice that the trial was re‑fixed to begin on 7 January 2016, with 12 days reserved.

10.On 11 February 2015, the Director gave notice that Madam Tang Hak Ling (鄧克玲) (Chan’s widow, “Tang”) who wished to be joined as a party had applied for legal aid.

11.On 6 March 2015, So Lung & Associates filed notice to act for Tang.

12.On 23 March 2015, the Director filed a memorandum notifying that he had refused Tang legal aid.

13.On 24 March 2015, Hon L Chan J made an order on the joint application of Tang and the defendant that:

(1) leave be granted to Tang to represent the estate of Chan for the purpose of carrying on these proceedings; and

(2) leave be granted to substitute the plaintiff in the title of the action as “The Personal Representative of the Estate of Chan Chuen, Deceased”.

14.On 2 April 2015, Tang filed notice of appeal against the Director’s refusal to grant legal aid.  The appeal came before a registrar on 19 June 2015, and again came before a registrar on 23 October 2015. There was a further hearing scheduled on 17 March 2016.  That hearing date was subsequently brought forward to 7 January 2016.

15.On 10 September 2015, Tang filed notice to act in person.

16.On 9 October 2015, the Director maintained his decision to refuse legal aid.

17.By a further amended notice of hearing, the court gave notice that the trial would be heard commencing on 8 January 2016, with 9 to 15, and 19 to 26 January also reserved (12 days).  Compare para 9 above.

18.By letter dated 1 December 2015, Tang wrote to the court asking to postpone the trial sine die, to be dealt with after the conclusion of her legal aid appeal.      Tang was asked to make a formal application.  Tang issued an inter parte summons on 17 December 2015 returnable on 29 December 2015.  Her application was opposed by the defendant.

Consideration of plaintiff’s application

19.It is in the interests of litigants to get ready for legal proceedings.  If a litigant wishes to be legal represented, it is incumbent on the litigant to:

(1) instruct privately funded lawyers; or

(2) apply for legal aid, and if necessary and appropriate, to appeal against any refusal to grant legal aid;

in good time and with due diligence so that the lawyers can properly equip themselves for trial.  Litigants have no right to expect the court to grant them indulgence if they do not act with due diligence.  Litigants should properly equip themselves for legal proceedings. The court does not wait for dilatory litigants to be ready.

20.The plaintiff knew in February 2015 from the notice referred to in para 9 above that the trial would commence in January 2016.  The notice of hearing referred to in para 17 above did not materially change the trial dates and did not bring forward the trial.  On 23 March 2015, the plaintiff was notified that the Director had refused legal aid.  There was an 8‑month period between April 2015 (date of notification that legal aid had been refused — 23 March 2015) and November 2015 (date of letter to court asking for an adjournment — 1 December 2015) for the plaintiff to pursue a legal aid appeal to its conclusion.  The plaintiff has not demonstrated that she had exercised due diligence in her legal aid appeal.

21.There was no reason why the defendant should suffer prejudice in terms of delay and wasted time and costs. 

22.The plaintiff has not shown any or any good ground for an adjournment.

Disposition

23.For the reasons given above, I refused the plaintiff’s application to adjourn the 12‑day trial listed for hearing commencing on 8 January 2016.

The plaintiff in person, present

Mr Johnny Ma, instructed by Lo & Lo, for the defendant