Mary Lau v. Eleanor Lee

HCMP000664/1979

Coram: Roberts, C.J., Leonard and Li, JJ.

Date of Judgment: 30 November 1979

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JUDGMENT

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Li, J.:

1. This is a motion for leave to appeal from an order of Judge Liu dated the 30th August, 1979 and his order dated the 4th October, 1979 refusing leave to appeal against the aforesaid order out of time. By the same notice of motion the Defendant (Applicant) applies for leave to appeal against the judgment of Judge Hooper dated the 4th September, 1979 and for leave to do so out of time despite the refusal by Judge Hooper in his order dated the 4th October, 1979.

2. Facts leading to the application may be summarised as follows.

3. There was a tenancy dispute between the Plaintiff (Respondent) and the Applicant, Eleanor Lee, over a room in a house in Cheung Chau. As a result the Plaintiff (landlady) issued a writ suing for possession of the said room. It is irrelevant to consider at this stage the merit of the claim or the defence. Suffice it to say the writ was issued in 1977 and a date was set down for hearing. Between June, 1978 and the 30th August, 1979 there had been no less than 6 - 7 adjournments at the request [or application on the part] of the Applicant on the ground that she suffered bad health and that she was not fit to attend trial.

4. There is some evidence that Miss Lee was, during that period, in a delicate state of health. Finally the case was set down for hearing on the 3rd September, 1979. Sometime prior to the 30th August, 1979 she applied again for an adjournment sine die by Judge Liu. However, at the hearing of a previous application on the 21st December, 1979 Judge Liu had issued a warning to the Applicant in the following terms:-

"But the defendant must be warned and warned for the last time that there will not be any further adjournments granted on medical grounds unless doctors are tendered for cross-examination."

5. The Applicant's summons for a further adjournment sine die and to vacate the date of 3rd September was heard on the 30th August. On that day the Applicant failed to tender the doctors for cross-examination. She also failed to appear at the hearing, allegedly on ground of ill health. For this reason, Judge Liu refused her application for a further adjournment and the trial then proceeded on the 3rd September, 1979. The trial was heard by Judge Hooper. On that day the Applicant did not appear. The Plaintiff was allowed to prove the case ex parte. An order for possession was made against the Applicant with costs.

6. On 17th September, 1979, the Applicant issued two summonses. One was for setting aside the Order refusing the adjournment and for leave to apply out of time; the other was for setting aside the Order for possession and for leave to apply out of time. The former was heard before Judge Liu and the latter before Hooper. Again the Applicant did not turn up at either of the hearings. Both Judges refused the Applicant's applications. Hence the appeal to this Court.

7. As far as the first application is concerned, Judge Liu was exercising his discretion. A discretion must be exercised fairly having regard to the interest of both parties. On the one hand it is true that the Applicant suffered from a poor state of health for some time. Unfortunately she did not see fit to engage or instruct a lawyer well in advance to handle her litigation. However, there is evidence, by the letters she shows to this Court that, despite her ill health, she was able to write very long letters with such great ability that they appear to have been written by a legally trained person.

8. The judge had warned her before hand that if she wanted further adjournment, she must tender her medical advisors for cross-examination. She was not present on the 30th August, 1979. No doctor went on her behalf. Nor was she present on the 4th October, 1979. Having regard to the number of adjournments in the course of 1978 and 1979, we are unable to say that Judge Liu is wrong in the exercise of his discretion. Therefore the first application for leave against Judge Liu's Order must be refused.

9. As regards the Order by Judge Hooper the Applicant conceded that she has no complaint against the judgment. Her only complaint is that the case was tried in her absence. She had applied to Judge Hooper asking for the judgment to be set aside. She did not appear to conduct her application. This also is a matter very much in the judge's discretion. As the case stood, there was ample ground for Judge Hooper to exercise his discretion to refuse to set aside the judgment and dismiss the defendant's application and we see no reason to interfere with it. Leave to appeal against the judgment of Judge Hooper and his Order dated the 4th October, 1979 is also refused.

10. Costs, as is usual, will have to follow the event. There will be costs to the respondent.

Representation:

Applicant in person.

Anthony Neoh (Job Young & Co.) for Respondent.