Chan Wing Cheung Allan v. Ho Shu Yee Susana

HCA1941/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1941 OF 2000

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BETWEEN

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Before : Hon Waung J in Chambers

Dates of Hearing : 7 January 2005

Date of Judgment : 7 January 2005

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J U D G M E N T

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1.This is a summons by the defendant to vacate the trial which is scheduled to start on 12 January 2005, i.e. Wednesday of next week.  The application has been brought by the defendant on the basis that there is a pending appeal by the defendant against an order of directions made by me on 13 December 2004 whereby I directed, among other things, that the defendant is refused leave to file late witness statements and I also made directions for the fair conduct of the trial in the form of the service of Scott Schedule and also in the form of the way the trial was going to proceed in terms of time allocation for speeches and witnesses.

2.A Notice of Appeal have been filed dated 21 December 2004 but no active step has been taken to have the appeal urgently heard, at least urgently heard so that the appeal can be disposed of before the trial begins next week.  In these circumstances, it seems to me that there is a total lack of sufficient ground, or acceptable ground, for this court to vacate the trial merely because of the existence of pending appeal.  The defendant has not seen fit to do what is the least expected, or what is normally expected, to prosecute the pending interlocutory appeal with urgency.

3.It should be pointed out that the order I made is a pure case management decision, made in the light of the circumstances by a trial judge who has the task of managing the trial.  In these circumstances, with all the respect to Mr Lam, counsel for the defendant, the prospect of success before the Court of Appeal, it seems to me, to be somewhat less than encouraging.

4.The case is scheduled to begin next week, and it should begin as I have ordered.  The only variation to my order which I have made on 13 December 2004 is that in the light of the defendant having a delay putting a Scott Schedule in — it was not done until 4 January 2005 — which is in breach of my previous order, the plaintiff is given leave to put in a Scott Schedule, instead on 6 January 2005 as previously ordered now on 10 January 2005; the trial would begin on 12 January 2005.

5.The costs of application must be to the plaintiff.  I will make a gross sum assessment now of the costs, and I will hear the parties on that matter.  The defendant’s own costs are to be taxed in accordance with Legal Aid Regulations.

[Submissions on Costs]

6.The total costs assessed are in the sum of $13,000, to be paid forthwith.

Mr Francis Yip, instructed by Messrs Thomas Li & Yu, for the Plaintiff

Mr Simon Lam, instructed by Messrs Henry Lam & Associates, for the Defendant