Bruno Arboit As Sole Liquidator of Highfit Development Co Ltd v. Koo Siu Ying and Another

HCMP 2749/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2749 OF 2012

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Before: Hon Au-Yeung J in Court

Date of Hearing: 27 October 2014

Date of Ruling: 27 October 2014

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R U L I N G

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1.I have considered the principles set out in the various rules in Order 28 Rule 42, Order 35 Rule 5, Order 28 Rule 9(3) which have been referred to me by Mr Strachan, SC.

2.The court certainly has power to adjourn a trial on terms as it thinks fit.  Under the inherent jurisdiction of the court, the court also has power to control its process and to ensure that its process is properly used and not abused.

3.This is a case where there are serious allegations of breach of court orders by the defendants and committal for contempt is sought against them.  The trial has been fixed 13 months ago.  On the first day of trial, the court is given a purported medical certificate from a hospital that is outside Hong Kong purporting to state the conditions of Madam Koo.  I consider that it cannot be correct that a defendant, whether facing serious allegations or not, can simply show a piece of paper to the court and adjourn a trial on this matter.  There should be some independent evidence to satisfy the court that she is unable to attend today for medical reasons, and also her future medical conditions as to fitness to attend the trial.

4.I consider it appropriate for the court to exercise its discretion under the rules which I have referred to, to adjourn this case for trial.  But in the meantime I direct the defendant, Madam Koo, to subject herself to a joint examination by medical professionals appointed by the plaintiff liquidator and herself.  This hopefully will ensure her cooperation in coming up with some evidence that will satisfy the court as to how to take the matter forward, in view of her physical condition.

5.I shall make clear in paragraph 2 of the draft order, that the medical examination is for a specified purpose and nothing beyond.  Accordingly, in paragraph 2 of the draft, the wording will be slightly modified to the effect that the 1^st defendant do submit herself, within 28 days from the date of this order, to a joint medical examination by such medical professionals as may be appointed by the plaintiff and herself.  This is to see if she is medically fit to attend trial in person in Hong Kong or by video conferencing.

6.There shall be a directions hearing before me on 2 December 2014 at 4:30 pm for half an hour.

(Discussion between Court and Counsel re fixing court date)

7.The refixing will be in consultation with leading counsel’s diaries.  That would be Mr Strachan’s diary and Mr Huggins’ and one junior counsel’s diaries will be the junior counsel’s now before me.  That will be Mr Hew’s and Mr Khaw or Mr Cheung’s diaries.

Mr Mark Strachan SC, leading Mr Yang-Wahn Hew, instructed by ONC Lawyers, for the plaintiff

Mr Adrian Huggins SC, leading Mr Richard Khaw and Mr Lincoln Cheung, instructed by Lo, Wong & Tsui, for the defendants