Bank of China (Hong Kong) Ltd v. Fu Ming Kong Michael and Another

HCA 7769/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7769 OF 2000

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BETWEEN

AND

HCMP 3909/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 3909 OF 2000

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BETWEEN

(By Original Writ of Summons and Order to carry on)

(Consolidated pursuant to the Order of Master Wong dated
28^th September 2001)

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Before: Mr Recorder K. Kwok, SC in Chambers

Date of Hearing: 22 June 2005

Date of Judgment: 22 June 2005

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J U D G M E N T

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1.Shortly before 1 p.m. on the second day of trial, the 1^st defendant said he wished to speak to me in private about a personal matter.  I told him that it was improper for a judge to see a party in private in the absence of the other party/parties.  I suggested that if it was something personal, I was prepared to hear him in chambers in the presence of counsel for the plaintiff.  Both parties were agreeable and I heard the 1^st defendant in chambers.

2.The 1^st defendant said that to-morrow would be the last day for him to meet in Bangladesh a Danish customer and that it affected his livelihood and employment.  I asked him when the trial could resume if I should adjourn the hearing and he gave a long answer.  In the end he said 2 July or 1 July.  I asked him whether he had canvassed the matter in the Court of Appeal and he said he had only mentioned that there was this appointment.

3.I told the parties that I would continue the hearing at 2:30 p.m.

4.At the resumed hearing, the 1^st defendant told me he had nothing to add.

5.I did not call on counsel for the plaintiff.

6.During the lunch adjournment, I accessed the Court’s recording system and heard the judgment of the Court of Appeal delivered by the Honourable Mr Justice Yeung JA.  Shortly before the hearing resumed in the afternoon, I received from the clerk to the Honourable Mr Justice Yeung a copy of the judgment of the Court of Appeal.  Copies of this judgment will be made and given to the parties.  The following are extracts from the judgment (a quick and very rough translation and the original Chinese version prevails in the event of any difference):-

“… Mr Fu said that he was working for a Danish company; that in the second half of June he had to meet the chairman of the company in Bangladesh and to accompany the chairman to China and Hong Kong and that he could not persuade the chairman to change the date.  Mr Fu produced correspondence on this point.

“There is a reasonable suspicion that there is no sincerity on the part of the 1^st defendant to allow the trial to be completed as quickly as possible.

“There is no explanation for the delay in issuing the summons before Deputy Judge Poon.

“It must be stressed that the trial of any action should be completed as soon as possible.

“The meeting with the chairman does not constitute a reason for further adjournment of the action.  The Court’s time is wasted.  There is some injustice to the plaintiff.  The interests of other people have to be considered.

“Mr Fu should make arrangements to make himself available for trial on 21 – 24 June 2005 failing which he himself should bear the consequence.

“The appeal is dismissed.”

7.The Court of Appeal held that the meeting with the chairman did not constitute a reason for further adjournment of the action.  The judgment of the Court of Appeal is binding on the defendants and on me.  The 1^st defendant’s application is decidedly a waste of the Court’s time and an abuse of the process.

8.I dismiss the 1^st defendant’s application to adjourn.

9.After hearing the 1^st defendant on costs, I order that the costs of the application be paid by the 1^st defendant to the plaintiff, to be taxed on indemnity basis and paid forthwith.

Mr. Jason Pow, SC leading Mr. Kevin C. Wong, instructed by Messrs Gallant Y.T. Ho & Co., for the plaintiff

1^st defendant in person

2^nd defendant, represented by the 1^st defendant, in person