Ng Yuen Mai v. Yeung Shek Tim

HCA003342/2001

HCA 3342 /2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3342 OF 2001

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HCA 3343 /2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3343 OF 2001

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(Heard Together)

Coram : Deputy High Court Judge A Cheung in Court

Date of Hearing: 29 October 2002

Date of Judgment: 29 October 2002

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J U D G M E N T

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1.This is the trial of High Court Action 3343 of 2001, commenced by Ms Ng Yuen-mai against Mr Chang Man-sun. By an order of the master, this is also the trial of another action, High Court Action 3342 of 2001, commenced also by Ms Ng, as Plaintiff, against Mr Yeung Shek-tim. Mr Chang is absent today, whereas Mr Yeung is present.

2.At the beginning of the hearing this morning, the Plaintiff insisted that so far as HCA3343 of 2001 is concerned, this should be a trial, not only as against Mr Chang the Defendant, but also some other persons whom she referred to as D2 to D8. This is not a new matter; the Plaintiff has raised the matter before. But it is clear from the court file that the Plaintiff has never obtained leave from anybody for the joinder of parties. In fact, her previous application to do so has been unsuccessful.

3.Leave to set down the action for trial given by the master was only in relation to her claim against the only named Defendant, namely Mr Chang Man-sun, and this is the purpose of today's trial of her action. Upon being explained the position by the court, the Plaintiff said that in that case she would not proceed with her trial. She said she would come back tomorrow. Although I tried to find out from the Plaintiff what is the purpose of her coming back tomorrow if she is not proceeding with her case, she did not wait for me to finish but just stormed out of the courtroom.

4.In those circumstances, I cannot proceed with the trial. I bear fully in mind that the Plaintiff is an unrepresented person, but in my judgment the position has been clearly explained to her. It is her conscious decision not to proceed with the trial. In those circumstances, I would make an order dismissing the Plaintiff's claim in High Court Action 3343 of 2001. Since the Defendant, Mr Chang, is absent today and, in fact, he has been absent for quite a while, I make no order as to costs.

5.As I said, I am fully aware of the fact that the Plaintiff is unrepresented. But as I have also said, the position has been clearly explained to her, in fact, not only at today's hearing but also at earlier pre-trial hearings. In those circumstances I think it is only right that I should deal with the action now by dismissing her claim, notwithstanding that she has indicated that she will come back tomorrow.

6.In my judgment it is not for a Plaintiff, represented or unrepresented, to dictate to the court when and in what manner he or she would like to proceed with the trial. The action has been set down for trial to commence today, with the following three days also reserved. In the circumstances of this case I can see no reason why the Plaintiff should not proceed with the case today. Moreover, she has failed to tell me why she would come back tomorrow. So in those circumstances I do not think it is right for me to adjourn the trial to tomorrow to wait for the Plaintiff to come back and to wait for her explanation, if any, as to why she could not proceed with the trial today.

7.Although I appreciate that the Plaintiff is unrepresented, an unrepresented person does not have any better rights than a represented person in relation to the conduct of his or her proceedings, and in particular in relation to his or her conduct of the trial. I think I have sufficiently explained why I have decided, given the conscious decision of the Plaintiff to walk out of the courtroom without proceeding with her trial, that I should here and now make an order dismissing her claim.

8.For the same reason I also make an order dismissing the Plaintiff's claim in High Court Action 3342 of 2001. Mr Yeung is present today; in fact, he was present in the earlier pre-trial hearings. Costs should follow the event. I see no reason why Mr Yeung should not be given his costs of the action. So costs of the action be paid by the Plaintiff to the Defendant, to be taxed if not agreed.

9.Mr Yeung having told me that he does not wish to proceed with the counterclaim, on the basis that the Plaintiff's claim has been dismissed, this is what I am going to order. I think it would protect adequately the position of the Defendant, bearing in mind, of course, the interests of the Plaintiff as well, particularly as she is now absent. I make an order that the counterclaim be stayed on the basis that the Plaintiff's action against the Defendant has been dismissed. I give the Defendant liberty to apply to lift the stay in case the Plaintiff's action herein is revived in future, or any new action based on the same or similar facts is commenced by the Plaintiff against the Defendant in future, or upon any other good grounds being shown. I make no order as to costs regarding the counterclaim.

Representation:

Ms NG Yuen-mai, the Plaintiff in both actions, in person

Mr Yeung Shek-tim, the Defendant in HCA 3342 of 2001, in person

Mr Chang Man-sun, the Defendant in HCA 3343 of 2001, absent