Li Mei v. Aranbanphotkun, Pratthana

HCA 2145/2015

[2019] HKCFI 1973

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2145 OF 2015

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Before: Deputy High Court Judge Leung in Court

Date of Decision: 6 August 2019

Date of Reasons for Decision: 14 August 2019

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R E A S O N S  F O R  D E C I S I O N

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1.The defendant sought further adjournment of the trial on ground of her medical conditions. All the circumstances considered, I granted the adjournment on terms. These are my reasons.

Background

2.This is an action on dishonoured cheques drawn by the defendant in repayment of a loan of HK$1,500,000 owed to the plaintiff.  In defence, the defendant says the cheques were delivered as mere escrow.

3.The defendant has been legally represented in these proceedings including the pre-trial review on 27 March 2019.  The defendant started acting in person in May 2019.

4.The trial was scheduled to commence on 24 June 2019.  On 20 June 2019, the defendant filed an affirmation, requesting an adjournment of the trial on medical grounds. She complained about heart and eye conditions.  Various documents issued by hospitals and other medical institutions were exhibited in support.

5.The defendant left it to the court to find and to understand her conditions from the documents.  As far as I managed to do so, her complaints were essentially as follows:

(1)  The defendant was admitted to the public hospital on 25 April 2019 for complaint about chest pain. ECG/cardiac enzyme was said to be normal.  CT coronary angiography (contrast) was recommended.  Quite a number of medications were prescribed.

(2)  There were appointments for the defendant to attend tests at the public hospital on 26 June, 12 July and 27 August 2019 respectively.

(3)  There was a Cardiac CT Report in respect of the examination of the defendant’s artery and lung on 7 May 2019 issued by two physicians of a private hospital.

(4)  There were also copies of the images of the retina examination apparently carried out in late March 2019.

6.On 24 June 2019, the defendant was absent.  A Mr Cao appeared and represented to this court that the defendant was admitted to the hospital at the night before the trial, but he did not possess information that might cast light on her precise condition or her ability to appear in court then or in the foreseeable future.

7.Counsel for the plaintiff fairly acknowledged the need to be practical about the situation then.  I therefore decided to adjourn the trial for a short period to 6 August 2019, and reserved the costs of and occasioned by the adjournment.  I further directed that:

(1)  the defendant shall file and serve a further affirmation within 14 days providing a medical report from her treating doctor in explanation of her condition, treatment(s) and the doctor’s opinion on her fitness to attend the court including the hearing on 24 June 2019;

(2)  any application for further adjournment will not be entertained without proper application supported by affidavit exhibiting up-to-date medical report of the defendant’s treating doctor in details as mentioned in (1) above.

Further adjournment

8.By her affirmation filed on 15 July 2019, the defendant exhibited a brief report from the resident doctor of the hospital, which stated that the defendant was admitted for coronary artery disease and chronic ischemic disease pending coronary angiogram and intervention in August 2019.  Acute stress and heavy exertion were not advised until the investigation and intervention have been performed.

9.The defendant’s affirmation may be said to be deficient in various aspects.  It was filed out of time, contrary to my direction on 24 June 2019.  The report produced did not answer the specific concerns of this court in accordance with the direction given on 24 June 2019.  There was a discharge slip that evidences the defendant’s admission to the hospital on 23 June 2019 mentioned above.  Diagnoses of chronic ischaemic heart disease, diabetes mellitus, macular degeneration of retina and abnormal lung shadow on chest X-ray were recorded.  Follow-up was scheduled on 12 July, 6 August and 27 August 2019.  The appointment slip produced suggests that the defendant would attend a pre-intervention preparation at the hospital on 6 August 2019, and the intervention operation on 13 August 2019.  Hence her application for further adjournment.

10.The defendant appeared in court.  She referred to her heart problem and the intervention recommended by the doctor.  She defaulted the pre-intervention preparation at the hospital scheduled on 6 August 2019 mentioned above in order to attend the court.  She confirmed that the operation will be held on 13 August 2019. She also complained about her poor eyesight because of her retina problem.  She asked for indulgence from this court to defer the trial to late August. However, it was clear to me that neither she nor this court could place confidence on such apparently subjective projection of hers.

11.I remind myself of the considerations set out by the Court of Appeal in Law Yin Pok Bosco, a minor by Lam Po Yee, his mother and next friend v Dr Chan Yee Shing, aka Dr Chan Yee Shing Alvin, HCMP 2256/2012 (2 November 2012) that the court should take into account, when faced with an application for adjournment of a milestone date on medical grounds.  I also derived assistance in terms of the approach of the court in Elijah Saatori v Raffles Medical Group (Hong Kong) Limited, HCPI 1114/2006 (7 September 2016)[1].  On the one hand, adjournment of the trial inevitably causes prejudice to the plaintiff.  On the other hand, the defendant act in person and will have to conduct the scheduled 3-day trial by herself in addition to giving evidence.  I would not ignore what the medical evidence manages to tell about the defendant’s condition.

12.At the end, to ensure fairness to both parties, I decided to allow the adjournment but only on terms.  I have such discretion pursuant to O35, r3 of the Rules of the High Court.

13.I gave my order in Chinese, which was essentially as follows:

(1)  Trial is adjourned to another date to be fixed (estimated length of 3 days); appointment to fix the date shall be made within 21 days from the date hereof.

(2)  In the event that the defendant fails to attend the appointment to fix the date or the defendant fails or refuses to provide her available date for the purpose of (1) above, the plaintiff may proceed to fix the date unilaterally.

(3)  The plaintiff may request for the trial to be fixed before this court, insofar as the diary of this court is available to accommodate.

(4)  On or before 20 August 2019, the defendant shall pay the plaintiff’s costs of and occasioned by the adjournment of the trial on 24 June 2019 and 6 August 2019, summarily assessed at HK$97,700, as well as the assessed costs payable under the previous orders of the court dated 5 July 2018 and 11 December 2018 in the total sum of HK$10,000.

(5)  In default of compliance with (4) above, the defendant shall be barred from relying on and advancing her defence at the trial, and the plaintiff may proceed to prove her case at the trial.

(6)  The order shall be drafted in Chinese and served.

14.I gave the order under (1) above to enable a realistic date to be fixed, after the defendant has undergone her operation and has had the chance of consulting the doctor thereafter.  The date that the defendant should provide at the appointment to fix the trial date should be the earliest yet realistic date on which she will be able to attend the trial.  The date so provided by the defendant will be taken as such.

15.It follows that further application for adjournment of the trial, even on medical grounds as mentioned, is the least expected or, if indeed taken out by the defendant, may not invite favourable view of the court.  Chances are that the plaintiff may be allowed to proceed in the defendant’s absence.

16.The defendant was so reminded in terms of the preceding two paragraphs during the hearing on 6 August 2019.

Mr Melvin Ho, instructed by Chiu, Szeto & Cheng, for the plaintiff

The defendant appeared in person

[The defendant may request for the arrangement of interpreter to assist her in receiving these reasons for the decision.]