Case Document

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HCA1113/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1113 OF 2009

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BETWEEN
	CHINA GOLD (PRECIOUS METAL) STRATEGIC INVESTMENT LIMITED	Plaintiff
	and
	CHINA GOLD (CAPITAL) LIMITED	1st Defendant
	LAM YIH JIUN, MICHAEL	2nd Defendant
	WONG YU KIT	3rd Defendant

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Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 21 August 2009

Date of Ruling: 21 August 2009

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R U L I N G

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1.In respect of the summons, the centrepiece of which is that there be a speedy trial, I am going to accede to that application. I think this matter ought to be tried as soon as possible. There is an injunction in place, which is making things difficult.

2.I can understand, certainly from the defendants' point of view, the plaintiff, itself, wants the matter resolved as soon as possible in the circumstances of this case and so that is the order that I make.

3.I have been asked by the defendant that the trial, should be heard by a bilingual judge. The reason for this is that there are a number of documents in Chinese. They will need to be translated and the cost of translation would obviously add to the costs of the action overall.

4.On the other hand, of course, I have been very much the judge before whom most of these applications have been listed and I am familiar with the papers. On 4 August I spent the day hearing some cross-examination of one of the defendants in this action, Mr Wong Yu-kit. So I think that is something that I ought to take into account.

5.It seems to me that whilst I can see the great advantages of having the matter tried by a judge who can actually read the documents, I do not think they are so numerous that there should be any problem, really, in their translation.

6.Another point raised by Miss Mak is that on the plaintiff's website there are a number of statements, which she says are defamatory in nature. Mr Poon says that these can be translated. There are two or three statements of about 200 or 300 words each. That should not present a problem but Miss Mak says that a judge who cannot read Chinese might fail to capture the subtlety of the expressions. Of course, I do have a court interpreter who will be able to assist me in that regard.

7.So I think, overall, although I can see the force of the argument that there should be a bilingual judge I think I ought to continue with this matter, where I have been involved now for the past three months and I have heard a number of applications and I am familiar with the case.

8.So, effectively, there is going to be an order in terms of the summons, save that under paragraph 4, mutual inspection will be within seven days and not three days, setting down after 56 days rather than 42 days. That is paragraph 6 of the order. Estimated length of trial, five days.

9.A point arises on this: Miss Mak, in particular, has been anxious that I should perhaps make some formal order directing mediation. Of course, that is something that the court is required to have regard to. In a case such as this, where one really needs to be getting on with things, very much in the interests of both parties, I do not think that this would be an appropriate step to take. In any event, by increasing the setting-down period from 42 to 56 days, there is a genuine window of opportunity there for the parties if they are so minded. They both need to agree to go to mediation. If it looks as if they are doing well with the mediator, then they could come back to me and I could adjourn the trial dates or take such other course as is appropriate. That is what I say about mediation.

10.Therefore, I will make an order in terms of the summons, subject to these alterations: paragraph 4, seven days instead of three; paragraph 6, 56 days instead of 42 and the length of the trial, estimate at five days rather than four days.

(Discussion re unless summons)

11.What I am going to say on your unless summons is that I am going to adjourn that, generally, with liberty to restore and I am going to reserve the costs of it. Then you can take such course as you think is appropriate having regard to what you see within seven days.

12.On the passing-off summons, the appropriate order would be no order on the summons because if there has been compliance, albeit late, but he says you have got to pay the costs. What do you want to say about that, Miss Mak? You have come in late. You could have filed this.

(Discussion re costs)

13.I am going to order costs against you but I think these costs, I am going to assess these. The passing-off has not figured very much in this. I am going to assess costs at $4,000, these being the costs of and occasioned by the summons to be paid forthwith.

14.So you have got the orders: order in terms in respect of the speedy trial of the summons, as amended in the way that I have indicated. The costs are in the cause there, unless order summons adjourned, generally with liberty to restore. Passing-off summons: no order on the summons but costs to you, Mr Poon, assessed at $4,000, to be paid forthwith.