Cheng Cheung Wang v. Lo Noi Yung and Others

IN THE COURT OF APPEAL

1986, Nos. 44, 45, 156, 161
(Civil)

BETWEEN

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Coram: Hon. Cons, V.-P., Kempster & Hunter, JJ.A.

Date of hearing: 1^st December 1987

Date of delivery of judgment: 1^st December 1987

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JUDGMENT

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Cons, V.-P.

1.  By way of introduction I may refer to part of a judgment of this Court given on the 15^th October –

“Finally we should add that this piece of litigation has already come before various divisions of this court in various guises. Each time the court then constituted has had to grapple with a very complicated task. We have been told this afternoon that four appeals are outstanding. We propose to give the following directions as to the hearing of those appeals, and any related applications.

2.  First they should be brought on at the earliest possible moment. Secondly that they should be brought on before a court constituted as the present court is constituted, - (i.e. Silke V.P. and Kempster and Hunter JJ.A.), - if that is possible. If that is not possible then they should be brought on before a court presided over by Silke, V.P.”

3.  That was not possible in the present instance because the order which this afternoon we are asked to vary is an order made by Silke V.P. himself.

4.  The present position is that the four appeals mentioned in that quotation are fixed to be heard on the 16^th of this month and the following days. They were so fixed on the 25^th September this year. That was presumably done with counsel’s commitments in mind, for this Court had so directed even earlier.

5.  On the 13^th November a Notice of Motion was issued. It made two requests. Firstly, that the hearing dates of two of those appeals should be vacated and refixed to suit the convenience of counsel; secondly, that there should be a variation of the hearing date given to another motion originally taken out on the 18^th August, and subsequently amended by order of this Court on the 16^th September, which is this coming Thursday i.e. the 3^rd December. The motion in effect asks that the further two appeals be struck out. The motion of the 13^th November asked that that motion and – (I assume if the motion were rejected) – the two further appeals be heard instead on the 16^th December.

6.  The reason given for the requested variations was that the Appellants wished to instruct London counsel who was not available on the dates set down.

7.  The motions came on for hearing before Silke, V.-P. It may be that he did not appreciate their true effect for he treated them as an application to vacate the hearing dates in respect of all the appeals. Indeed a document headed “Draft speech of counsel” which has somehow found its way into our papers indicates that counsel who appeared on that occasion was under the same misunderstanding. In any event Silke, V.-P. refused to vacate the hearing dates of any of the appeals. He felt that the Appellants had had sufficient time to do what was necessary; that the litigation had been in progress for a very considerable period; and that it should be accorded finality as soon as possible in accordance with the directions already given. However he accepted that the motion of the 18^th August should be heard on the 16^th December as a preliminary matter and further directed that the appeal bundles should be served and filed seven days before the hearing. That is of course in accordance with the general rules laid down, but he felt, not surprisingly, that a specific direction in the circumstances of this litigation might be helpful. He ordered that the Defendants should bear the costs of the application on an indemnity basis.

8.  That was on the 18^th November. On the 26^th November the 1^st to the 5^th Defendants inclusive and the 7^th Defendant took out a notice to vary his order asking that the dates of all the appeals should be vacated and then refixed in accordance with the diary of their London counsel, and that the costs here and below – I assume it is meant of the previous hearing – he costs in the cause. A similar notice was issued the following day by the 6^th Defendant. She added, as a further ground, that she was in ill health.

9.  In support of these notices three affirmations have been filed. The first is by the Attorney of the 1^st-5^th and 7^th Defendants. Exhibited thereto is an affidavit from the London counsel in question. It was drafted in support of an application to be admitted to the local bar, although we understand that as yet no application has in fact been made.

10.  The second is an affirmation by the 6^th Defendant adopting the first affirmation on behalf of herself and the 7^th Defendant, who had authorized her so to do.

11.  The third is a further affirmation from the 6^th Defendant which indicates, as we understand is now the fact, that she was going into hospital yesterday evening, and invites us to hear her application in her absence. W have no indication as to how long she is likely to remain in hospital.

12.  As I mentioned a moment ago no application has yet been made for the admission of London counsel. As I understand the position taken by the court with regard to the admission of London counsel for particular cases – other than silks – counsel will only be admitted if they possess some particular expertise which is lacking in the local bar and which is necessary for the proceedings in question. There is no evidence before us that the London counsel in question has any particular expertise. As far as I can see from the paper put before us, these appeals do not in any event require any particular expertise. In my view it is most unlikely that London counsel will in fact be admitted and delay for that purpose is unnecessary.

13.  As far as the 6^th Defendant is concerned, again as I mentioned earlier, we have no indication as to how long she is likely to remain in hospital. However I note that she too relies on the need for London counsel so that, although at the moment she is unrepresented and has been so since two days after the last proceedings, it appears likely that she does intend to be represented on the appeals. In that circumstance it seems relatively unimportant, when set against the inordinate length of time already taken by this litigation, that she herself, should that be the case, will still be in hospital. I would echo the comment of Silke, V.-P., it is high time these matters were settled.

14.  For my part therefore I would refuse the motion.

Kempster, J.A.:

15.  I agree and have nothing to add.

Hunter, J.A.:

16.  I also agree.

Miss Margaret Austin (M/s Richard Bryson & Co.) for Plaintiff/Respondent

Jeffrey Lung (M/s Fred Kan & Co.) for 1^st to 5^th and 7^th Defendants/1^st to 5^th and 7^th Appellants

WONG Ching 6^th Defendant, absent