Chinachem Charitable Foundation Ltd v. Chan Chun Chuen and Others

HCAP 8/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2007

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BETWEEN

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Before: Hon A Cheung J in Chambers

Date of Hearing: 28 May 2008

Date of Judgment: 28 May 2008

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J U D G M E N T

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1.We have not reached the setting-down stage.  So whatever dates I indicate today would only be provisional dates and those dates would be subject to my giving leave to set down the case for trial.  But given the unusual nature of the case and the importance of the case to the parties, I am prepared to take the exceptional course of pencil-marking, as it were, dates for the trial of the action.

2.I have borne in mind all the points urged upon the Court by the parties, including the parties’ rights to choose the counsel of their own choice and to be represented by counsel of their own choice at trial, the convenience of counsel, the question of gaining an unfair litigation advantage, if any, the availability of counsel, the question of prejudice or possible prejudice in terms of administration of the estate pending trial, the readiness of the case for trial in February – given that expert reports are only to be exchanged in October and the need for a safe buffer period, as well as the estimated length of trial, amongst other considerations that have been taken into account by me.

3.But one particular matter stands out in my consideration, namely, the age of the 3^rd defendant who is now 97 years old.  He will turn 98 next year.  For very obvious and understandable reasons, he wants to have the trial commence as early as possible.  Through Mr Lam, he has also reminded the Court that it will only sit as a court of first instance.  Beyond it, there are other courts to which the unsuccessful parties could take their case.  So the time element is, indeed, important.  Mr Yu SC for the plaintiff has rightly pointed out that the age of the 3^rd defendant has always been a concern since the previous litigation concerning the estate of the deceased’s late husband.  With the passing of each day, the force of the 3^rd defendant’s argument becomes stronger.

4.Having mentioned the previous litigation, I must register that I have, no doubt, taken into account the relevance of the previous litigation, and the advantage, be it a fair or unfair one, of having the deceased’s previous team of counsel to represent the plaintiff in the present litigation.  I can well see the relevance of the previous litigation as part of the material background to the present litigation, but that matter does not require necessarily that the plaintiff be represented by the same team of counsel.  There is no suggestion that a new team of counsel cannot familiarise themselves sufficiently with the relevant background – including the previous litigation – given sufficient time, and I do believe that between now and the earliest possible date for starting the trial, namely, February next year, there should be sufficient time for any team of counsel to familiarise themselves with the case.  For one, I am new to this litigation and there is no suggestion that the previous judge who tried the former case should try the present case.

5.So while I have taken into account the relevance of the previous litigation, I can only give it the due weight it deserves.  I need also bear in mind the obvious point that the Court does not sit for the convenience of counsel.  It sits for the administration of justice and one important element is that justice should be administered as quickly and as expeditiously as possible.  Justice delayed is justice denied.  But I must put all this in context – one is talking about here a difference of about three months, ie starting the trial in February and starting it in May. 

6.Having balanced all relevant considerations and having looked at the matter in the round, having borne in mind in particular the age of the 3^rd defendant, and, further, having borne in mind the fact that, at least so far as the 1^st defendant is concerned, I have been told, neither the February dates nor the May dates suit all counsel that the 1^st defendant has instructed (or intends to instruct), I take the view that the fairest direction to give, which by nature is a provisional one, is to have the trial commence in February.  In other words, the convenience of counsel of all parties is not to be taken into account.  That would, in my view, provide a level playing field for the parties.

7.As I say, by nature, that can only be a provisional direction.  I am only pencil-marking the dates for the parties.  Everything is subject to the parties obtaining leave from the Court to set down the case for trial, and that will not take place until after compliance with all the directions that I have previously given, including the service of witness statements and the filing of expert reports.  In other words, the matter will have to be revisited some time after October.  But if everything should go well, the trial should commence on 16 February 2009, a Monday.

8.At the moment, the best estimate is between 6 and 8 weeks.  Having familiarised myself to some extent with the pleadings, I think it would be much safer to reserve 8 weeks, for the time being, for the trial.  That is not an encouragement to the parties not to finish the case within 6 weeks, if that is at all possible, but so far as reserving dates is concerned, I think 8 weeks would be a better estimate than 6 weeks. 

9.All this is subject to revision as the case progresses towards trial, particularly after completion of all interlocutory steps.  All this will have to be revisited by the parties.  I have indicated during argument that, once started, I expect to carry on with the trial until its completion, regardless of whether the case should overrun its estimate.  If, having got my provisional dates today, the parties should want to brief counsel to appear at trial, counsel must be briefed on the specific understanding that if the trial cannot be completed within the estimated time (as may be revised from time to time), it will continue day to day until completion, unless otherwise specified by the Court, and counsel shall make himself or herself available accordingly.

10.The provisional trial dates are 16 February 2009 and those following, with 8 weeks reserved.  The parties shall inform each other the types of expert reports they intend to file and serve within 28 days from the date hereof.  The parties shall confer amongst themselves whether the issue of construction of the 2002 will can be tried separately from the other issues raised in the pleadings, and seek the Court’s directions, if necessary, accordingly.  The service of LiveNote is to be enlisted for the trial.  Costs be in the cause.

Mr Benjamin Yu SC, instructed by Clifford Chance, for the plaintiff

Mr Jonathan Harris SC, instructed by Haldanes, for the 1^st defendant

Mr Wong Wai Hung, Senior Government Counsel of the Department of Justice, for the 2^nd defendant

Mr Albert Lam of Hampton, Winter & Glynn, for the 3^rd defendant