L v. Secretary for Justice on behalf of Commissioner of Police

HCA659/2005

IN THE HIGH COURT OF THE

HONG KONG ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 659 OF 2005

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BETWEEN

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Before : Hon. Fung J in Chambers (open to public)

Date of Hearing : 14 August 2007

Date of Ruling : 14 August 2007

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R U L I N G

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1.This is the second time that I have to grant an adjournment for the hearing of the summons due to indisposition of counsel for the Plaintiff.  On the last occasion, 4 May 2007, the case was adjourned because counsel, Mr Denis Yu, was indisposed and was unable to file any skeleton argument in time or to argue the case on that day.  It transpired that on the last occasion the costs thrown away ordered against the plaintiff were borne personally by Mr Yu and the solicitor for the Plaintiff had waived his costs,  and the public fund, i.e. the Director of Legal Aid, was not out of pocket.

2.The case was adjourned to a date to be fixed either before me  or another court, wherever sooner, and it transpired that the case was fixed before me again today.  In the interim, the Plaintiff has been at work to some extent, in that a second affirmation from the solicitor of the Plaintiff was filed in support of the summons.  It was not until 27 July that the brief for today was delivered to Mr Yu.  Between that date and last Thursday, there were discussions as to the filing of skeleton argument, and there were communications between Mr Yu, Miss Lau, her junior, and instructing solicitor.  The understanding as at that stage was that skeleton argument would be ready by last Friday evening latest.  Then we all know there was the typhoon last Friday and, come this Monday, Mr Yu could not be contacted and he was not contacted until early this morning.  Again, he was indisposed.

3.To cut a long story short, I allowed the adjournment most unwillingly on the comfort that the costs thrown away for today would be borne by Mr Yu again, and the solicitor would once again waive his costs, as per a common understanding between all parties concerned on the Plaintiff’s side, including the Director of Legal Aid.

4.I wish to say this is in order to avoid the same happening for the third occasion.  I say this to Mr So, instructing solicitor, that this time he should be most vigilant to see to it that the adjourned hearing of 11 October 2007 should be adhered to by all efforts, even if a resolute decision has to be made that alternate counsel be briefed to take over the case. Solicitor for the plaintiff should ensure, with early detection, that if counsel were once again to be indisposed, that report be the Director of Legal Aid.  If there were any failure to do so, which I hope will not be the case, then there will be a serious question of a waste of costs order, which I have decided not to impose on this occasion.

5.I order that:

(1)	the case be adjourned to 11 October 2007;
(2)	the defendant be at liberty to file an affidavit in reply within 28 days from the date hereof;
(3)	skeleton arguments by the Plaintiff be submitted on or before 27 September 2007;
(4)	the plaintiff to pay cost thrown away, summarily assessed at $30,000.

Miss Julia Lau, instructed by Messrs William Sin & So, for the Plaintiff

Mr Edward Shum, counsel on fiat, for the Department of Justice