Chan Sai Lun, Henry v. Chan Wai Wah and Another

CACV000096/1997

IN THE COURT OF APPEAL

1997, No. 96
(Civil)

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Coram: Hon Litton V-P, Godfrey and Ching JJ.A. in Court

Date of hearing: 9 May 1997

Date of judgment: 9 May 1997

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J U D G M E N T

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Litton, V.-P.:

1. We have yet another interlocutory appeal on short notice from an order made by the trial judge in this case in the course of case management.

2. The judge yesterday lifted the statutory stay imposed under s15(4) of the Legal Aid Ordinance and, knowing by that time that the defendant was legally represented, adjourned the trial of the action to a date to be fixed by the Clerk of the Court, not before 14 May 1997, to enable the lawyers representing the defendant to prepare for trial.

3. We have the benefit of a full and clear ruling by the judge, giving reasons for the adjournment. Every relevant consideration has been carefully taken into account. He has fully considered the unfortunate history of this litigation and the fact that much of the delay is due to the fault of the defendant. And in weighing that factor the judge said this:

"In my view, even the most difficult litigant is entitled to a fair hearing. She should not be penalised for her past behaviour by depriving her of legal representation."

4. It may well be that as a result of the order made, the trial will not be able to proceed for some time because the plaintiff may have difficulties due to the absence of witnesses. This is not something which the judge has disregarded. A trial judge has a very wide margin of discretion in the proper management of the trial before him. In my judgment, the judge has properly exercised his discretion and I would dismiss this appeal. I should add that in so far as it is necessary to allow for an abridgement of the time for lodging the notice of appeal we should do so and dispose of the appeal on its merits.

Godfrey, J.A. :

5. As I stated when this case was last before us, it would be entirely a matter for the judge whether or not to accede to any application subsequently made to him to lift the stay of the action then presently obtaining. Before the judge next came to deal with the matter, the defendant was granted legal aid, and those advising her will clearly need time to consider her case. The judge was clearly entitled to exercise his discretion to adjourn the trial of the action accordingly; indeed, I think he was clearly right to do so, most unfortunate though the result, a yet further delay in the matter, obviously is.

6. The case would have been entirely different if, before the judge had come to deal with the matter yesterday, the defendant had not been granted legal aid; but she has been granted legal aid, and it is that which puts a different complexion on the matter, as the judge fully appreciated.

7. In these circumstances, and for the reasons given by my Lord, the Vice-President, I too would dismiss this appeal.

Ching, J.A. :

8. I agree that this appeal must be dismissed.

The Judge below had a very difficult decision to make. He weighed up all the circumstances fairly and accurately and came to his decision. The only matter of which he did not know was the particular circumstance of two of the Plaintiffs' witnesses but that can be dealt with by fixing a date convenient for their attendance in Hong Kong. In these circumstances, we cannot interfere.

Representation:

Ms Selina Lau (M/S Wai & Co.) for the Plaintiff (Appellant)

Mr Charles Chan (M/S Crawford Miller Peart) assigned by DLA for the 2nd Defendant (Respondent)