Tsang Wing Kwai and Another v. Wong Wing Sze Tiffany and Another

HCMP 1912/2013

[2019] HKCFI 2790

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1912 OF 2013

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(By Original Writ and Order to carry on dated 29^th November 2013)

Before: Hon Au-Yeung J in Court

Date of Hearing and Decision: 8 November 2019

Date of Reasons for Decision:  13 November 2019

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REASONS FOR DECISION

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1.On 31 October 2019, just 8 days before this trial was due to start, the 2^nd respondent (“Fai”) applied for legal aid. On 2^nd November, Fai applied by letter for adjournment of the trial on medical grounds.

2.The 1^st and 2^nd applicants (“Kwai” and “Open Treasure” respectively) sought to uplift the stay of proceedings arising out of Fai’s legal aid application.  They also opposed Fai’s application for adjournment.

3.After hearing submission, I dismissed Fai’s application. Here are my reasons.

Uplift of legal aid stay

4.Fai claimed that he had spent his money on his medical treatment which led him to apply for legal aid in September.  Unfortunately, due to his medical condition, he could not give documents to the Director of Legal Aid in time to obtain legal aid.

5.At the pre-trial review, Fai (who was acting in person) already claimed that his money was subject to an injunction and that he was in lack of funds to seek legal representation.  Accordingly, his state of lack of funds to seek legal representation was not a material change of circumstances.

6.Further, at the pre-trial review, this court reminded Fai that if he wanted to seek legal representation, he should do it as soon as possible; and the court would not adjourn the trial for him to seek legal representation. 

7.For the reasons given in paragraphs 5-6, I have no hesitation in uplifting the legal aid stay.

Adjournment of trial on medical grounds

8.A trial is a milestone date.  It cannot be adjourned unless there are exceptional circumstances: Order 25, rule 1B(3), Rules of the High Court.

9.The medical certificates showed that Fai had acute onset back pain since 17 September 2019 and was diagnosed with advanced lung cancer as stated in a medical certificate dated 18 October 2019.  He was granted sick leave from 17 September until 28 November 2019.  The medical certificates did not state that he was unfit to attend trial.

10.Fai further explained the medical treatments that he had received in his oral submission.  He has been on oral therapy since about mid-October.  He was supposed to receive treatment in hospital between 5 and 8 November but he decided to defer it because of this case.  He would have pet scan in the hospital on 23 December.  He claimed to be able to attend trial only in March 2020.

11.Fai claimed that his physical condition did not enable him to prepare for the case.  In August, he had obtained the documents for this re-trial from the Administratrix (in the form of a USB) but the documents were incomplete and the Administratrix would not give him further documents on the pretext that she had to remain neutral.  He received the trial bundles in October but he had not read them.

12.However, as early as 20 September 2019, Kwai’s solicitors had already asked Fai for comments on the trial bundles.  Fai did not give any substantive response, claiming that he did not have the physical strength to respond or to handle the documents.  Trial bundles prepared by Kwai’s solicitors were served on Fai as early as 8 October 2019, a month before this trial was due to start.

13.With respect, not all illnesses or medication required complete rest.  There was no medical certificate to show that Fai was not fit to attend trial, notwithstanding that he had told the doctor that he had to go to court and that he had sought legal advice concerning the application for adjournment.  I cannot accept that a solicitor would refuse to tell him about the procedure for seeking an adjournment.

14.Having heard Fai, I am not satisfied that he was not fit to attend trial.  His oral submission showed that he had a clear state of mind with full attention to details during the whole process.  Blood tests and hospitalization were spread out.  The hospitalization was obviously not urgent as Fai had postponed it.  Even if the trial were to take its full course, hospitalization would only be postponed by 2 weeks.  He claimed to need blood tests twice a week, but the last ones were conducted at monthly intervals, at the end of September and end of October.  I am not satisfied that the deferred hospitalization or blood tests would affect Fai’s fitness to attend the trial.

15.Kwai has filed an affirmation in opposition to the adjournment.  It contained many allegations against Fai as to his dishonesty and delaying tactics.  Given the lack of opportunity for Fai to answer them, I declined to rely on that affirmation but solely focused on Fai’s own evidence before the court. 

16.For the reasons given in paragraphs 8-14 above, I therefore refused to adjourn the trial.  The pace of the trial can be adjusted to suit any needs of Fai to rest.

Mr Ambrose Ho, SC and Mr Yuen Siu Kei, instructed by W K To & Co, for the 1^st and 2^nd applicants

Attendance of the 1^st respondent was excused

The 2^nd respondent appeared in person