Hon Foo Choi v. Hometek International Ltd

DCCJ 3129/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3129 OF 2014

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DECISION

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1.The trial of this case has been fixed to commence on 10 July 2017 with 10 days reserved. On 19 June 2017, it came to this court’s attention that the Director of Legal Aid filed a memorandum on 16 June 2017 notifying the court that the plaintiff has made an application for legal aid. By the operation of Legal Aid Ordinance s 15(4) and Legal Aid Regulations reg7A, unless otherwise ordered by the court, there would be an automatic stay of all the proceedings herein for 42 days, which means that the trial scheduled to commence on 10 July 2017 would be vacated.

2.I immediately directed the parties to provide written submissions on whether the automatic stay of 42 days should be lifted as the trial has been scheduled to commence on 10 July 2017 (“the issue”), and I indicated that the court might determine the issue on papers after reading the written submissions.  The parties have provided the written submissions in accordance with the directions.  The plaintiff adopts a neutral stance on the issue while the defendant submits that the stay should be lifted.  Having read and considered the submissions, I am of the view that the issue can be determined on papers. This is my decision on the issue and the reasons thereof.

3.It is pertinent to note the following:-

(a)   At all times and up to now, the plaintiff is legally represented in these proceedings.

(b)   On 15 December 2016, in the case management conference, after hearing submissions from the parties, the master ordered that the case would be set down for trial, the pre-trial review would be on 8 May 2017, and the trial would commence on 10 July 2017 with 10 days reserved.

(c)   On 8 May 2017, in the pre-trial review hearing, after hearing submissions from the parties, I ordered that the scheduled trial dates should be maintained.

(d)   At all times up to the pre-trial review and in the pre-trial review, the plaintiff did not mention that he had ever intended to apply for legal aid.

4.In the post-CJR era, the trial dates are milestone dates and may not be varied unless there are exceptional circumstances justifying the variation. See Rules of the District Court, Order 25 rule 1B(2) and (3), and PD5.2 §42.  The plaintiff submits that if the trial dates remain unchanged, since he has limited financial resources, he may have to act in person.  However, if the plaintiff has any financial difficulty in continuing to engage lawyers to represent him in these proceedings, he should apply for legal aid at a much earlier time.  The plaintiff has not offered any explanation, let alone satisfactory explanation, as to why he did not apply for legal aid at an earlier time but only did so when the trial would commence within a month.  In my judgment, there is no reason justifying variation of the trial dates.  The answer to the issue is clearly in the affirmative.

5.I order that the automatic stay of 42 days as a result of the plaintiff’s legal aid application be lifted, and the trial shall proceed as scheduled.  Costs of the submissions on the issue be reserved.

Written submissions by Kenneth Poon & Co for the plaintiff

Written submissions by Huen & Partners for the defendant