Man Fong Hang v. Man Ping Nam and Others

HCA007935E/1998

HCA 7935/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7935 OF 1998

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Coram: Deputy High Court Judge Lam in Court

Date of Hearing: 22 July 2003

Date of Decision: 22 July 2003

Date of Reasons for Decision: 30 July 2003

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REASONS FOR DECISION

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1.I have recited the background leading to the two applications before me at the commencement of this trial in my Ruling of 21 July 2003. To recap, the two applications are, (1) the application by Messrs Christine M Koo & Ip ["the Firm"] under O. 67 rule 6 to cease to act for Man Leung and (2) the "application" by Man Leung to have the trial adjourned. Pursuant to my said Ruling, the two matters were heard together on 22 July 2003.

2.I was informed by Mr Neoh SC that the O. 67 summons had been duly served. Although in the special circumstances of the case, bearing in mind the trial had been held up by these applications, I dealt with the application on the basis of the information supplied by Mr Neoh, I think a proper affirmation of service should be filed for the purpose of record and I directed accordingly. Again in view of the special circumstances of this case, I was prepared to grant leave for the service of the summons outside jurisdiction. After hearing submissions (and Man Leung was of course absent, although he was still represented by the Firm at the time of the hearing), I dismissed both applications. The consequence is that the trial continued and the Firm is still solicitors acting for Man Leung pursuant to Order 67 rule 1(1) and as far as this court is concerned, counsel for the Defendants represented all three Defendants. Mr Neoh accepted that there was no conflict amongst the three Defendants apart from the question of adjournment. Once that question had been resolved, there is no reason why counsel could not continue to act for Man Leung. Man Leung certainly had not indicated, as far as I know, that he would not want counsel to act for him if there was no adjournment. I now give my reasons for these decisions.

3.In view of the following matters, I consider that the key issue to these two applications is whether this court should accede to Man Leung's request for adjournment. As acknowledged by Mr Neoh, the only conflict between the Defendants was on the question of adjournment. In fact, the case of Man Leung on the merits was the same as the case of the other two Defendants. Apart from the question of adjournment, there was no reason why the Firm could not continue to act for Man Leung in the trial. The only ground relied on by the Firm to ask for an order under O. 67 r. 6 was the conflict between the Defendants stemming from the request for adjournment. Hence, once this question of adjournment had been decided, the conflict no longer subsisted and the underlying basis for the O. 67 r. 6 application likewise disappeared.

4.As I have said, Mr Neoh did not have instructions to apply for an adjournment on behalf of Man Leung. However, I am of the view that instead of brushing aside Man Leung's request on the ground that there is no proper application before me, it would be in the interest of all concerned that the court should deal with it on its merits.

5.From the two letters sent by Man Leung to the court, his request for adjournment was made on the ground that he could not return to Hong Kong to attend trial due to poor health. He produced a letter dated 30 June 2003 and a letter dated 11 July 2003 from a Dr Pankaj Premnath of White Cliffs Medical Centre in Kent to support his request. The doctor said in the first letter that Man Leung had developed sudden onset of shortness of breath and he would be undergoing medical investigations. In the second letter, the doctor repeated the observation as to the symptom of shortness of breath plus symptoms of frequency of micturition. The doctor did not give any diagnosis and only said that investigations were pending. The doctor was of the opinion that Man Leung would be unfit to travel by air. The letters did not say that Man Leung required any hospitalization nor was there any suggestion that any medication had been given to him.

6.In my judgment, such medical evidence provides slender support to Man Leung's request for adjournment. Whilst I can understand the doctor's concern about the well being of his patient, I must say that with the greatest respect to the doctor, this court cannot be expected to accept his conclusion that Man Leung was unfit to come to Hong Kong based on such scanty information. These letters have to be read against the background that Man Leung had been advised by the Firm that concrete evidence as to the health and medical conditions of him is required to substantiate his claim that he was unfit to come to attend trial. On the material before me, I am not satisfied that Man Leung could not come back to Hong Kong for the trial.

7.Further, even assuming for a moment that Man Leung was unfit to travel by air, it is still possible to continue with the trial and if necessary arrange for his evidence to be taken through video-link. It would be quite some time before we come to his evidence and there might be sufficient time to arrange for that in the interim. Moreover, as mentioned, Man Leung's case is the same as the other two Defendants who would also be giving evidence. As far as I can see, Man Leung's testimony did not add anything new to the defence case. Of course, Man Leung was entitled to give his own account of the events to the court and as I said, there are means to achieve that even if he could not fly back to Hong Kong. But I fail to see why an adjournment of the trial was called for simply because he could not come back to Hong Kong.

8.I therefore refused Man Leung's request for adjournment of the trial. Even if he did not attend the trial, his interest would be adequately protected by his lawyers in view of my decision on the Order 67 application.

9.As regards the Order 67 application, Counsel agreed that the principle set out in the commentary of the Hong Kong Civil Procedure 2002 is a correct summary of the position. A solicitor may withdraw for good cause and the court has a discretion whether or not to make the order. Unless there are special circumstances which render it expedient to retain the solicitor on the record, the order will generally be made as a matter of course upon proof that the solicitor has in fact ceased to act for the party. Goff LJ observed in Gamlen Chemical Ltd v Rochem Ltd [1980] 1 WLR 614 at p. 623 that the rule was not dealing with the relationship between the solicitor on the record and his client, but the position as between other parties to the litigation and the client. Vis-à-vis those other litigants, and I would add also the court, the solicitor remained on the record shall be regarded as being still the solicitor for that client if no order is made under Order 67 Rule 6. Mr Fung SC attempted to derive other principles from that judgment concerning how the discretion under Order 67 Rule 6 should be exercised. In my view, the other parts of that judgment were dealing with the question of solicitors' lien and I do not read what their Lordships said in that context as laying down the general approach with regard to how the court should decide an application under Order 67 Rule 6.

10.In the present case, Man Leung did not terminate the retainer of the Firm. Hence, the Firm must show that there was and still is a good cause to discharge itself. As I said, the only cause referred to was the conflict of interest between the Defendants arising from the question of adjournment. In view of my above decision on the request for adjournment, this is no longer a live issue. Whilst the Firm was justified in taking out the Order 67 summons, in view of the latest development, I hold that it is no longer appropriate to grant an order under Order 67 Rule 6. The situation now is akin to a case where a solicitor had been instructed to apply for an adjournment of the trial and the court refused the application. In the absence of any other instructions from his client or other good cause, a solicitor is bound to continue to act for that client at the trial.

11.Due to Man Leung's absence and the very late stage at which the Order 67 application was made, bearing in mind the common stance taken by all the Defendants regarding the substantive merits of the case and their evidence, and having regard to the fact that the Firm would in any event remained on the record to represent the other two defendants and conducted the trial accordingly, I hold that this court should not accede to the application by the Firm. There are indeed special circumstances in this case which renders it expedient that the Firm should be retained on the records as solicitors for Man Leung.

12.In so deciding, I am not imposing the Firm upon Man Leung. He is at liberty at any time to file a Notice to Act in Person or instruct another firm of solicitors to act for him and file a Notice of Change of Solicitors. But until he does so, the Firm would be regarded by this court as acting for him in the trial.

Representation:

Mr Patrick Fung, SC, instructed by Baker & McKenzie, for the Plaintiff

Mr Anthony Neoh, SC, Mr K M Chong & Mr Ernest Koo, instructed by Christine M Koo & Ip, for the Defendants