Secretary for Justice v. Chun Kam Chiu

HCA919/2002

IN THE HIGH COURT OF

THE HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE ACTION

NO.919 OF 2002

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BETWEEN

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Before : Hon Waung J in Court

Date of Hearing : 13 June 2005 (Day 6)

Date of Judgment : 13 June 2005

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J U D G M E N T

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1.I have an application before me by Ms Vivian Ho on the instructions of Messrs Waller Ma Huang & Yeung, acting for the defendant Chun Kam Chiu, for an adjournment of the trial today, Day 6 of the trial.  The grounds advanced by Ms Ho, who has said everything that could be said for the defendant, are two :

(1) that there was insufficient time for the defendant to seek legal representation after the former solicitors have left the scene; and

(2) that points of law had arisen in the trial which he found to be more difficult than he could cope with.

2.I will deal with each point in term.  But before I do that, I think it would be sensible first to see of what had happened. 

3.This trial had been set down and the trial dates had been fixed a long, long time ago.  Just, I believe, three, four or five days before the trial was due to begin (the trial started on 6 June 2005), a summons was issued by the then solicitors for the defendant dated 27 May 2005 seeking an order that Messrs Alvan Liu & Partners ceased to be the solicitors for the defendant, and this summons was supported by an affirmation of Miss Winnie Leung dated 27 May 2005 and the principal grounds set out in support of the application was that the solicitors were not receiving proper instructions from the defendant.

4.On the day of the hearing, that is, 1 June 2005 of that summons for ceasing to act, the court found that there was already a notice of the defendant to act in person, dated 30 May 2005.  Having regard to the fact that there was already a notice of the defendant to act in person, the summons of the solicitors for order to cease to act was withdrawn because the two were obviously inconsistent with each other, and the court acted on the basis of the notice of the defendant to act in person.  It was a voluntary act and choice of the defendant to act in person.  The defendant who sought to act in person must be aware of the dangers involved in not having representation.  When the trial started, there was no question put to the court of “could we have a short adjournment of the trial so that I could find alternative lawyer”. 

5.The transcript showed that the defendant repeatedly asked for an adjournment on the basis that he was depressed — he was suffering depression therefore he should not be forced to proceed with the trial.  I believe it was probably towards the 3^rd or 4^th day of the trial, then there began murmurs about legal representation, and that is, of course, after the opening by Mr Mok when the strength of the plaintiff’s case or, rather, the hopelessness of the defendant’s case which centred on a defence of global settlement was apparent to everyone in court, including the defendant.  It was at that stage that the defendant sought more and more to delay the trial, either in the form of his continued complaint about depression or a new theme of wanting lawyers.

6.By Friday, 10 June 2005, the theme of wanting lawyers became a louder song.  That was when I said to the defendant that if he wished to, he could have a lawyer to appear before me today, which explains Ms Ho’s presence today.  So, on the 1^st ground that he did not have sufficient time to find a lawyer to take up the case, this is simply not the case.

7.I do not believe that he even tried to find lawyers.  He himself wanted to act in person and was very happy to act in person.  The fact that Ms Ho could come so quickly shows that there were lawyers who could take up the case and, if a lawyer said to me : “I have been approached on such and such day and I could not take up the case because (of whatever reason)”, that is another matter.  But that is not the case.  So I reject the ground that there was insufficient time to find lawyers and that he had tried and had failed.  In my view, he did not try, and there is no question that he could not find lawyers to represent him.  It was his choice to dismiss his lawyers or deliberately not to want lawyers so that he thought he could have a better chance to act in person.  With his theatrical excuses constantly displayed before the court, so far he has done extremely well.  The trial had been delayed by at least two or three days by his constant interruptions.

8.I now turn to the 2^nd ground.  The 2^nd ground is that, because legal points had emerged which turned out to be more difficult, therefore he required legal representation.  In my view, that is not a good ground.  When a person decides not to use lawyers, he has to decide in the context of the risk he has to run.  He knew the case that was coming up.  He knew legal points would be involved.  He could not say : “I now take the view that I don’t need lawyers, but when I do, I can get adjournment.”  That is not the way the cases are managed in this court.  The trial cannot stop because someone says : “I suddenly find some difficulty.”  He decided not to have lawyers, and so be it.  And if he thereby suffers as a result of his decision because the case turns out to be more difficult or whatever may be the reason, that is part and parcel of the consequence of his decision.  So, that is no ground. 

9.The court must have regard not only to the interest of the defendant but also to the interest of the plaintiff, as well as to the interest of everyone else waiting in the queue in the court, namely, waiting for a judge to be free to deal with many of the other cases that are coming up in the court.  The defendant does not have a monopoly of the time of this court or of any court.

10.I therefore reject the application of the defendant for an adjournment.  The application is dismissed with costs which I will now assess by way of gross sum assessment.

Mr Mok Yeuk Chi, instructed by the Department of Justice, for the Plaintiff

Miss Vivian Ho, instructed by Messrs Waller Ma Huang & Yeung, for the Defendant