Ng Nim Chung, Deceased and Another v. Ng Wing Man Terry

HCA 2221/2016

[2021] HKCFI 2423

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2221 OF 2016

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Before: Deputy High Court Judge Leung in Court

Date of Hearing:  16 August 2021

Date of Decision:  16 August 2021

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DECISION

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1.This is day one of the trial of this case, which is expected to last for 8 days. The plaintiffs, essentially the estate of Ng Nim Chung, deceased (“the Deceased”), commenced the present action to recover from the defendant, son of the Deceased, the property which was and is registered in the name of the Deceased and the defendant. The Deceased’s widow, mother of the defendant, is the administratrix of the estate. She is as of today 88 years old.

2.The defendant used to be legally represented until March 2019.  He still acts in person.

3.When the case was before Hon K Yeung J for pre-trial review on 5 May 2021, the defendant was absent from the hearing.  His information to the court in late April 2021 indicated that he could not attend as he was in the UK.  By email on the day before that hearing, the defendant further indicated to the court that he was unable to appear via video-conferencing facilities of the court, in view of the time and the know-how required of him.  Not surprisingly, the court proceeded in his absence, and pursuant to O25, r1C(2), struck out his counterclaim on provisional basis. What remains is his defence.

4.By letter dated 22 July 2021, which the court received by fax on 23 July 2021 (Hong Kong time), the defendant informed the court that he would be unable to return to Hong Kong to attend the trial as scheduled, and sought an adjournment of the trial.  His ground was that he was banned from boarding the flight booked from London via Amsterdam to Hong Kong on 29 June 2021.  Subsequently, the Hong Kong Government imposed a ban on all incoming flights from the UK with effect on 1 July 2021.  He enclosed copies of (i) airline ticket confirmation for the flight on 29 June 2021; (ii) hotel confirmation for booking for quarantine upon arrival at Hong Kong on 30 June 2021; and (iii) certificate of COVID-19 testing dated 27 June 2021.  The letter was copied to the plaintiffs’ solicitors.

5.On 28 July 2021, this court issued direction requesting the plaintiffs to state their observation regarding the defendant’s letter.  This court made clear that in the meantime, unless otherwise directed, the trial arrangement was maintained as scheduled.

6.By letter dated 28 July 2021, the plaintiffs’ solicitors explained to the court that the defendant’s above letter did not warrant their formal response as there was no formal application.  However, one wonders how a litigant in person would be in a position to file a formal application for an adjournment on the ground of his very absence from the jurisdiction, unless perhaps by instructing legal representatives to do so on his behalf.  Acutely aware of the fact that there was no formal application before the court, what this court expected, as stated in the direction, was the plaintiffs’ observation and making known their stance to the court and the defendant instead of remaining silent until the first day of the trial.

7.The plaintiffs’ solicitors then stated their stance that adjournment would be opposed, and submission would be made in that regard at the commencement of the trial.  In view of the plaintiffs’ response, the defendant sent a further letter dated 30 July 2021 by fax.  He reiterated that he would have attended the trial, but for the frustration by the pandemic situation.

8.On 30 July 2021, the plaintiffs’ counsel lodged and served his submissions.  Apart from the opening submission on the issues for trial, he made his submissions on the grounds for opposing an adjournment of the trial.

9.Counsel reiterates the lack of formal application for an adjournment.  Reference was made to AXA China Region Insurance Co Ltd v Leong Fong Cheng [2016] 6 HKC 220 per 232H-233A (§53).  What the appellate court stated in that case was no doubt the general principle. However, the physical inability of a litigant to file a formal application because of the pandemic, as mentioned above, was not contemplated at the time.

10.In any event, it is submitted that adjournment of the trial should not be granted for the following reasons:

(1)  A trial date is a milestone date: O25, r1B(8) of the Rules of the High Court, Cap 4A.  Under O25, r1B(3), the court shall not vary a milestone date, unless there are exceptional circumstances justifying the variation.

(2)  The court will take into account factors including (i) nature of the proceedings; (ii) nature of difficulty preventing witness from attending and whether the applicant is responsible for creating that difficulty; (iii) efforts of the applicant to resolve the issue by exploring alternatives; (iv) whether the adjournment will resolve the problem; (v) risk of prejudice or other disadvantage to other parties if adjournment is granted; and (vi) wider implications on the administration of justice: see Velatel Global Communications Inc v Chinacomm Ltd HCA 1978/2011 (22 March 2016).

(3)  The defendant has not filed any affirmation to verify his explanation for his alleged inability to attend trial.  There is no explanation at all why he was allegedly banned from boarding the flight to Hong Kong on 29 June 2021.

(4)  Based on public information, there should be alternatives whereby the defendant could have attempted to make his way back to Hong Kong afterwards.  There is no explanation of whether and, if yes, what effort the defendant has made to arrange an indirect flight via a transit country where there was no restriction on flights to Hong Kong.  It was also pointed out for instance that the defendant could have booked a flight to a country in Group A2, B, C or D (e.g. Singapore, Thailand, Malaysia, the Netherlands)^[1] and stayed there for 21 days, and then book a flight for arrival at Hong Kong 3 weeks before trial.  The defendant could be out of quarantine after arrival in Hong Kong about a week before the trial.  There is no evidence that such alternative was practically impossible.

(5)  It is also suggested that the defendant could have applied to the Department of Justice for dispensation of the strict requirement of quarantine to enable him to give evidence in legal proceedings, which has apparently been allowed in other cases: see reference in Standard Chartered Bank (Hong Kong) Ltd v Lau Lai Wendy & Anor[2021] 1 HKLRD 712 at §10.

(6)  In any event, the defendant’s situation was self-induced.  Leave to set down the trial was granted since December 2019.  As mentioned, he experienced the provisional striking out of his counterclaim as a result of his absence from the pre-trial review hearing in May 2021.  Whilst he confirmed then to the court that he would return to Hong Kong to attend the trial, he has not acted promptly and conservatively with a view to enabling himself to do so in good time.

(7)  Whilst the defendant was allegedly prevented from boarding the flight on 29 June 2021, he has somehow waited for 3 weeks before writing to the court and the plaintiffs with no explanation for such delay or why that alleged episode happened to him on 29 June.

(8)  Reference is made to no attempt by the defendant to restore his counterclaim under O25 r1C(4) after its having been provisionally struck out.  Further, contrary to the direction of Hon Yeung J at the pre-trial review, the defendant has failed to respond to the plaintiffs’ request for agreement or comment on the trial bundles.  The failure, it was pointed out, was a factor taken into account by the court in refusing a last-minute adjournment: see Tsang Wing Kwai v Wong Wing Sze Tiffany [2019] HKCFI 2790 at §12.

11.The defendant, so the plaintiffs submit, was the author of his own misfortune, while his request for adjournment is categorised as tactical manoeuvre.  Delay in making application for adjournment is sufficient reason for it to be dismissed: see Lau Lai Wendy(above) at §7.  The defendant is said to be dilatory and the genuineness of his intention to contest the case at trial was questioned.

12.Seeing the above written submissions of counsel for the plaintiffs, the defendant sent in his written representation, which was received by fax near midnight by the court on 9 August 2021 (Hong Kong time).  For the first time, he explained that he was prevented from boarding the plane for Hong Kong on 29 June 2021 on the ground that he had been in contact with confirmed infected person(s).  He was allegedly required to undergo home quarantine for 14 days thereafter.  Taking into account the mandatory quarantine required upon arrival at a transit country and then Hong Kong, he would still have been unable to attend the trial.  He also pointed out the various uncertainties then in making the further arrangement for the necessary flight and hotel in the transit country and Hong Kong for the necessary quarantine.

13.Each case is decided on its own facts.

14.An important consideration is whether or not the defendant was dilatory or has demonstrated no genuine intention to defend the trial.  As mentioned, it was pointed out that notwithstanding the provisional striking out of his counterclaim for his absence from the pre-trial review hearing in May 2021, the defendant has not taken any step to seek to restore it.  It should be noted that the counterclaim essentially follows his case in defence to the claim.  Further, the defendant was also not responsive to the plaintiffs’ attempt to consult him in respect of the compilation of the trial bundle, contrary to the direction of the court at the pre-trial review hearing.

15.Whilst the defendant put forward what appears to be documentary proof of his arrangement to fly back to Hong Kong on 29 June, he made no mention of how he came to be allegedly banned from getting on board the scheduled flight in his letter dated 22 or 30 July 2021.  He did not do so, until after the plaintiffs’ counsel pointed out the deficiency in his explanation and materials in support in his opening submission.

16.Though he now sought to explain that he was allegedly banned from boarding the flight because of his contact with confirmed infected person(s), and that he was mandated to home quarantine in the UK as a result, he produced not a single trace of documentary evidence in that connection.  For a country like the UK, that is the least expected, if what the defendant claimed was the fact.

17.Most importantly, the defendant has himself to blame for his situation.  Most of the points made by the plaintiffs above are valid.  The pandemic is no longer new.  Nor is its uncertain development. Resurgence of confirmed infection cases and the discovery of variants of the virus in different parts of the world, as well as their implication on international travel, are hardly news either.  The defendant made his conscious decision to depart and/or remaining out of Hong Kong, and thus exposing himself to such risk that may impact on his return to Hong Kong.  When it comes to such impact on his ability to meet the milestone dates of the court as a party to legal proceedings, which must be paramount and strictly necessary, the risk was entirely for him to take, quite regardless of whatever personal reason he might have for taking the risk in the first place.

18.Worse still, the defendant has somehow waited for complete 3 weeks after his alleged failure to board the plane before writing to the court and the plaintiff.  No explanation for the delay was offered.  Nor was the reason for his alleged episode at the airport on 29 June until his submission dated 9 August.  In view of his further explanation dated 9 August, he probably took the view that it mattered not whether he should promptly inform the plaintiffs and the court, as he also probably concluded that it would be impossible for him to make it to the commencement of the trial in any event.  Counting on the adjournment he apparently was.

19.If the practical impossibility of seeking to return to Hong Kong after the alleged episode at the airport on 29 June was indeed his conclusion, it would still have been for him to satisfy the court with that by evidence.  However, what he did was to comment on the submission of the plaintiffs’ counsel about the practical alternative of returning to Hong Kong via a third country.  He pointed out the uncertainties in the time and arrangement needed for such purpose.  As the burden was on him to justify the requested adjournment, he was expected to come up with concrete evidence of the steps actually taken to make it happen. Projecting the uncertainty in making the necessary arrangement, yet not actually attempted, and the uncertainty in the restriction and quarantine requirement of the third countries that might have to be involved is not sufficient.  As counsel for the plaintiffs submits, there is also in place a mechanism whereby application might be made to the Department of Justice with a view to special mandatory quarantine requirement upon arrival at Hong Kong.  There is no material to show that the defendant has sought to explore that or that he was for any reason not eligible to attempt that.

20.I must also take into account the advanced age of the 2^nd plaintiff, mother of the defendant, who would be at the receiving end of the requested adjournment.  The concern about the impact of delaying the trial for a long period of time on her ability to give oral evidence lucidly is valid.  Further, the plaintiffs are legally aided, and counsel informed the court that he himself would not be available to stay in the case unless the adjourned trial would take place not earlier than the second half of next year. If an adjournment for a shorter period than that is ordered, and assuming that the court’s diary manages to accommodate, change of counsel would have been entailed.  This would not be desirable to the plaintiffs and when the public fund is engaged.

21.The proper balancing in the administration of justice in these circumstance, in my view, tilts against the defendant, who took the risk that now materialized before him, and who has, but fails to discharge, the burden to satisfy the court that he has indeed taken all the necessary steps to enable his attendance at the trial.  In the circumstance, I come to conclude that an order pursuant to O35, r1(2) ought to be made to allow the plaintiffs to proceed in the defendant’s absence.

[Counsel submits on costs.]

22.Costs occasioned by the defendant’s request for adjournment (including hearing time spent on this from 10am to 12:04pm today) be payable by the defendant in any event, to be taxed, if not agreed.

Mr Kerby Lau, instructed by Hampton, Winter and Glynn, for the 1^st and 2^nd plaintiffs

The defendant was not represented and did not appear