Ho Shan Shan v. Fung Chiu Ling and Another

HCA 2472/2014

[2018] HKCFI 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO 2472 OF 2014

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D E C I S I O N

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1.This action is concerned with the beneficial ownership and right to possession of Flat 4, 16/F, Block B, Kam On Court, 20 Hang Kam Street, Shatin, New Territories, Hong Kong.

2.The plaintiff is legally represented whereas the 1^st defendant has since 21 July 2017 been acting in person.

3.The trial of this action was originally set down for 6 days from 17 to 24 October 2017.

4.By a letter dated 10 October 2017, supported by a medical certificate dated 9 October 2017 (“1^st Certificate”) by Dr Deepa Natarajan of the Department of Palliative Care of the Shatin Hospital (Hospice – Cancer Case), the 1^st defendant applied for an adjournment of the trial for 6 months.

5.The 1^st Certificate, though brief, clearly stated the following:

(1)   that the 1^st defendant had by then been hospitalised for over 2 months since 25 July 2017;

(2)   that she was then still in hospital under the care of the Department of Palliative Care / Hospice – Cancer Case of the Shatin Hospital; and

(3)   that she was then still undergoing chemotherapy.  She was still on oxygen and could not walk independently.

6.Despite such medical evidence, the plaintiff strongly objected to an adjournment!  It was stressed on her behalf by counsel that the trial dates are milestone dates that cannot be moved in the absence of exceptional circumstances.

7.I took the view that the fact that the 1^st defendant had been, and still was, seriously ill as described in the 1^st Certificate constituted a most exceptional circumstance justifying the movement of the trial dates.  On 12 October 2017, I adjourned the trial and vacated the October 2017 trial dates. After consulting the plaintiff’s counsel’s diary, I re-fixed the trial to 23, 24, 25, 28, 29 and 30 May 2018.  In the meantime, I directed the 1^st defendant to update the court on her condition at intervals of 8 weeks.  I reserved the question of costs of the adjournment.

8.In January 2018, the court received a letter dated 17 January 2018 signed by the 1^st defendant, advising the court that, although her condition had improved, she was still being hospitalised and recuperating at Shatin Hospital and that her movements were still somewhat impaired.

9.On 23 January 2018, I directed the 1^st defendant to submit a report by her treating doctor addressing the following points within 14 days:

(1)   her up-to-date condition;

(2)   the nature and details of the medical treatment that she was undergoing and the projected completion date of such treatment; and

(3)   whether, in light of the progress in her recovery, she would be fit to attend court to conduct her own defence on 23, 24, 25, 28, 29 and 30 May 2018.

10.The 1^st defendant did not respond within 14 days but the court did, on 15 February 2018, receive from her a medical certificate dated 1 February 2018 by Dr Natarajan (“2^nd Certificate”).  The 2^nd Certificate read as follows:

“This is to certify that the [1^st defendant] was under our care in Shatin Hospital since 7 August 2017. She was admitted to Prince of Wales Hospital on 25 July 2017, and has stayed inpatient for her illness.

She has metastatic cancer of breast, with bone metastases and lung metastases.

She has had the following treatment:

Radiotherapy to lumbar spine.

Given chemotherapy starting 26 August 2017, given 4 cycles till October 2017

She also had radiotherapy to her right leg in December 2017.

The current plan is for review in Oncology Clinic for ant further treatment (such as chemotherapy).”

11.Noting that the 2^nd Certificate did not cover when the 1^st defendant’s treatment was expected to complete or whether she would be fit to attend court to conduct her own defence on the May 2018 trial dates, on 28 February 2018, I directed the 1^st defendant to provide the court and the plaintiff with a supplemental report by her treating doctor to answer these 2 questions.

12.I did not hear from the 1^st defendant until about 16 April 2018, after a few reminders by my clerk.  This time, she submitted 2 certificates dated 13 March 2018 (“3^rd Certificate”) and 27 March 2018 (“4^th Certificate”) by Dr Natarajan. 

13.The 3^rd Certificate stated:

“The [1^st defendant] was previously under our care in Shatin Hospital, and under the care of Prince of Wales Hospital Oncology Department.

In reply to your questions:

1. She is still under treatment for her cancer of breast with hormonal therapy, at the moment the 2^nd date of her treatment is not fixed.

2. I am not able to predict if she will be fit for court hearing on the dates mentioned (23, 24, 25, 28, 29 and 30 May 2018).”

14.The 4^th Certificate stated:

“The [1^st defendant] is under our care in Shatin Hospital for her cancer of breast.

She was reviewed today, still has some back pain and dizziness, we will review her in about 2 months.

We would recommend her to rest and continue rehabilitation for now, till review here in earlier June.”

15.Given Dr Natarajan’s inability to predict the 1^st defendant’s fitness or otherwise to attend the trial on the May 2018 dates, on 16 April 2018, I directed that an affirmation be made by or on behalf of the 1^st defendant on or before 24 April 2018 to depose to whether the 1^st defendant would be fit enough to attend court to conduct her own defence on the May 2018 dates and, if not, the conditions that prevent her from doing so.

16.By an affirmation made on 24 April 2018, the 1^st defendant informs the court that her physical condition was not good; that she would at times feel dizzy; that she constantly feels pain in her neck and waist; that she cannot sit or stand for prolonged periods and needs to lie down to rest if she sits or stands for too long; and that she often feels fatigue and has to rest constantly as she has completed chemotherapy not long ago.  She asks for a further adjournment of the trial for 3 to 4 months to enable her body to recover to a normal level.  She ventures to suggest that as she is acting in person, the trial may be shortened to 3 days.

17.By written submission lodged on 30 April 2018, the plaintiff opposes the 1^st defendant’s application for a further adjournment of the trial.  More particularly, the plaintiff complains of further delay if another adjournment is granted and the prejudice that she has already suffered as a result of the last adjournment (such as the wastage of costs in arranging for her 2 overseas witnesses to come to Hong Kong to testify).  It is argued on behalf of the plaintiff that:

(1)   When the 1^st defendant was reviewed at the Shatin Hospital on 27 March 2018, she only mentioned to the attending doctor that she still had some back pain and dizziness so that the other symptoms mentioned in the 1^st defendant’s said affirmation are “mere fabrications for the sole purpose of persuading the Court to grant her further adjournment.”

(2)   Given that the 1^st defendant could travel from the subject property to the High Court to make her said affirmation on 24 April 2018, there is no reason why the 1^st defendant is unable to attend the forthcoming trial.

(3)   Since the 1^st defendant is well enough to be discharged from hospital there is no reason why the 1^st defendant is unable to attend the forthcoming trial.

(4)   To accommodate the 1^st defendant, the plaintiff would have no objection to shorter hearings with frequent short breaks.

18.I am inclined to accept what the 1^st defendant has said in her said affirmation about her current conditions.  She is a breast cancer patient.  To combat the cancer, she has undergone and is still undergoing medical treatments that are known to produce adverse side effects.  Her role at the trial is not just that of a witness who needs to attend court for the duration of her testimony.  As she is acting in person, she would have to be present throughout the trial.  She would have to make opening and closing submissions.  She would have to cross-examine the plaintiff and her 3 witnesses.  She would have to lead and re-examine her own 4 witnesses.  These tasks could be stressful even for professional counsel in normal health.  In my view, it would be unfair to compel the 1^st defendant to go on with the trial in 3 weeks’ time while she is still significantly affected by poor health.

19.On the other hand, while I do not under-estimate the prejudice that would be caused to the plaintiff by another adjournment, there is nothing in the papers before me that suggests that the underlying dispute giving rise to this action has to be resolved urgently.

20.Balancing the parties’ competing interests, I adjourn the trial and vacate the May 2018 trial dates.  The dates for the adjourned trial should be fixed in consultation with the plaintiff’s counsel’s diary, which should in any event be not before October 2018.

21.I reserve the question of costs of the further adjournment.  Although the 1^st defendant cannot be blamed for getting sick, the abovementioned chronology suggests that she has failed to alert the court and the plaintiff regarding the circumstances giving rise to the need for the successive adjournments in a timely manner.  However, given the proximity of the May 2018 trial dates, I consider it imperative that the parties be told whether the further adjournment is granted or not as soon as possible.  I have therefore not wasted time in calling and waiting for submissions on costs.

Mr Edward Fan, instructed by Chow, Griffiths & Chan, for the plaintiff

Madam Fung Siu Ling, the 1^st defendant acted in person