Chow Wong Wai Hung Margaret v. Wong Hau Tak

HCMP798/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 798 OF 2005

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BETWEEN

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Coram : Hon. Lam J in Court

Date of Hearing : 27 September 2005

Date of Decision : 27 September 2005

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D E C I S I O N

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1.The originating process in these proceedings is somewhat ambiguous.  On the face of it, it looks like an originating summons but, at the same time in the body of that document it was described as a writ of summons.

2.Be that as it may, as I indicated in the course of argument this morning, even if it is to be treated as an originating summons, there are issues raised in the matter that could not be satisfactorily dealt with without pleadings.  In the light of that, I am happy to adopt the draft directions proposed by the parties to provide for the future conduct of the matter.

3.Subject to some revisions which I made on the draft, I will make an order in terms of the directions proposed.  Instead of reading them out, I will ask my clerk to give parties a photocopy of the same later on.

4.In a nutshell, there will be pleadings and discovery and also directions for the filing of supplemental witness statements.  The parties can then decide how to proceed with the matter after all these steps have been completed.  If they want to set down the case for trial, they will have to apply to the Listing Master for leave to set down.

(Submissions by counsel)

5.I am of the view that consideration should have been given at the hearing before Deputy Judge To as to the future conduct of the matter and, had serious considerations been given to that, quite obviously there should be pleadings and discovery instead of having the matter proceeded in the manner as it had.  I am of the view that both parties have to share the blame as regards the fact that today’s hearing became, in a sense, abortive in that there cannot be a resolution of the dispute.  Instead it was being used for directions hearing.

6.In the circumstances, I think the fair and just order is that the costs of today be in the cause and this is the order I make.

7.I will say something at the end about the conduct of the matter.  I think, to some extent, the problem has arisen because whoever represented the parties on the last occasion when the matter came before Deputy Judge To focused purely on the question of the vacation of the registration of the first agreement without giving much thought as to how the matter should proceed in the future.  In fact, if someone had given some thought to that, directions for filing of pleadings should have been given on the last occasion.  Neither counsel was able to offer any assistance on what happened before Deputy Judge To since neither of them was present. 

8.It is, as I have said in the course of the submissions just now, highly unsatisfactory that solicitors only sent a clerk to attend court together with counsel, especially when the clerk is not in a position to give proper instructions to counsel about what has happened on previous occasion and when counsel was not the counsel conducting the matter on the last occasion.

9.Equally, it is unsatisfactory for solicitors to instruct counsel at a very late stage.  I was told by Miss Auyang that she was only briefed yesterday.  That is unacceptable and unsatisfactory and I hope this sort of practice will cease as soon as possible.

10.In the light of my comments, I propose to have what I have said typed out and published in order to let the profession know about my misgivings as to how proceedings have not been conducted in a way it should have been.  It is hoped that this should not occur in the future.

Miss Joan Auyang, instructed by Messrs Francis Kong & Co., for the Plaintiff

Mr Victor F F Cheung, instructed by Messrs Cheung Fung & Hui, for the Defendant