Ernest Chong Kian v. Chong Yin Sing and Another

HCA 15070/1998

[2021] HKCFI 1831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 15070 OF 1998

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Before:  Deputy High Court Judge MK Liu in Chambers

Date of Hearing:  24 June 2021

Date of Decision: 24 June 2021

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DECISION

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1.This is a hearing for directions concerning the further conduct of these proceedings. As a result of my decision made on 8 March 2021 (“the March Decision”, [2021] HKCFI 599), the remaining parties in these proceedings are P2, D1 and D2. The background facts have been set out in the March Decision. For ease of reference, the abbreviations used in the March Decision are adopted herein.

2.In the March Decision, I directed that P2 should file and serve a Notice to Act in Person with a Hong Kong address therein (“the Required NAP”) as soon as practicable, if he intends to act in person in these proceedings.  P2 has never indicated that he would retain Hong Kong legal practitioners to represent him in these proceedings.  He has also not filed the Required NAP.

3.The following occurred after the March Decision:

(1)   On 26 April 2021, I made an order that unless P2 do file and serve a notice to act by the solicitors retained by him and acting for him in these proceedings, or the Required NAP within 28 days, his claim in these proceedings be struck out with costs without a further order (“the Unless Order”).  I also directed that there be a hearing for directions on 23 June 2021.

(2)   On the same date, D1’s solicitors wrote to the court and requested for rescheduling the hearing to any date in June and July 2021, except 7 and 23 June 2021.  On 27 April 2021, I directed that the hearing for directions be rescheduled to 24 June 2021.

(3)   On 29 April 2021, P2 wrote to this court and said, inter alia, that he was ordinarily resident in Singapore and could not file and serve the Required NAP.  He requested that he would be allowed to give his Singapore address in the notice to act in person to be filed by him.

(4)   On 30 April 2021, I directed that the Unless Order be stayed, and P2 should attend the hearing for directions on 24 June 2021.

(5)   On 4 May 2021, P2 wrote to the court and provided an email address for the purpose of having communication with him.

(6)   On 19 May 2021, P2 sent a Notice to Act in Person to this court.  However, the address on that notice is a Singapore address, not a Hong Kong address. 

(7)   On 30 May 2021, P2 wrote to the court and said that he could not come to Hong Kong and attend the hearing on 24 June 2021 due to COVID-19.  P2 requested for postponing the hearing.  However, P2 merely suggested that the hearing be postponed “until international travel can resume safely and health risk is at the minimal”.  On 1 June 2021, I directed that the hearing should proceed as scheduled.

(8)   On 16 June 2021, D1 provided his proposed directions (“D1’s Proposed Directions”) to the court.

4.As I said in [39] of the March Decision, these proceedings have dragged on for more than 22 years.  All the remaining parties must take reasonable steps to bring these proceedings to a conclusion as soon as practicable.  If P2 is serious in prosecuting his claim, he would try his best to come to Hong Kong to attend the hearings in these proceedings.  On 26 April 2021, I informed the parties that there would be a hearing on 24 June 2021. There may be difficulties in travelling from Singapore to Hong Kong while the pandemic is still ongoing.  However, given that P2 would have about 2 months to prepare for the trip, I am not convinced that a trip to Hong Kong is not possible or not practicable.  For these reasons, I have refused P2’s request to have an adjournment. 

5.P2 has chosen to act in person in these proceedings.  That is his choice.  However, having chosen to act in person, P2 must provide an address in Hong Kong for serving documents on him in these proceedings.  He has invoked the jurisdiction of the Hong Kong Court and is seeking an order against Ds from this court.  P2 has submitted to the jurisdiction of the Hong Kong Court, and he must provide an address in Hong Kong so that documents in these proceedings can be served on him effectively and efficiently.

6.It seems that P2 is insisting that he may file and serve a notice to act in person with a foreign address therein.  On the other hand, In D1’s Proposed Directions, D1 is seeking an order which is similar to the Unless Order.  In my view, to be fair to all the parties, the court has to give an opportunity to the parties to argue the issue, ie whether P2 may file and serve a notice to act in person with a foreign address, and determine the issue after considering the submissions.

7.I therefore make the following directions:

(1)   There be a substantive hearing before a judge in chambers (open to public) on a date to be fixed, with 2 hours reserved.

(2)   Not less than 7 days before the said hearing, the parties shall file and exchange their respective written submissions. Each party shall set out the order sought by him and his proposed directions for the further conduct of these proceedings in his written submissions.

(3)   Not less than 3 days before the said hearing, the parties shall file and exchange their respective written reply submissions.

(4)   No further written submissions be filed without leave of the court.

8.For avoidance of doubt, the view expressed in [5] above should be regarded as preliminary view of the court, which may or may not change after considering the parties’ submissions.

9.I direct D1 to serve a copy of this decision and the order made herein on P2 as soon as practicable.  Leave to serve these documents out of jurisdiction is given.

10.Costs reserved.  D1’s own costs be taxed in accordance with the Legal Aid Regulations.

Mr Charles Chan of Charles Chan & Co, assigned by Director of Legal Aid, for the 1^st defendant

The 2^nd defendant appeared in person

The 2^nd plaintiff was not represented and did not appear