TAI FOOK FUTURES LTD v. CHEUNG MOON HOI JEFF

CACV 103/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 103 OF 2005

(ON APPEAL FROM HCA 9932 OF 1999)

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DECISION

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Hon.  Yuen JA:

1.  This is the Defendant’s application by summons issued on 5 October 2006 asking to vacate a 2-hour hearing fixed for 19 October 2006 at 10:00 a.m.  By an ex parte application filed on the same day, the Defendant also applied to call as witnesses persons present at the appointment for fixing dates, which took place on 21 June 2006.  

2.  The hearing scheduled for 19 October 2006 is of the Defendant’s appeal from Chu J’s order made on 7 March 2005 and filed on 21 March 2005. 

Background

3.  This action had been commenced by the Plaintiff in 1999, for a debt allegedly owed by the Defendant as a result of trading in Hang Seng Index Futures.

4.  In April 2000, directions were made for discovery as well as for exchange of witness statements and expert evidence.  

5.  In 2003, the Plaintiff provided to the Defendant copies of audio tape recordings of telephone conversations between the Plaintiff’s employee and the Defendant and his wife on 28 and 29 April 1999. 

6.  However even as at 2005, there were still disputes between the parties as to discovery, and neither witness statements nor expert evidence had been exchanged.

7.  In February and March 2005 the Defendant issued 2 summonses:

- the 1^st (in February 2005) was for an order that the Plaintiff disclose the vendor, brand name and model number of the recording system used to record the telephone conversations on 28-29 April 1999;

- the 2^nd (in March 2005) arose out of a complaint that the Defendant had made against the Plaintiff to the Hong Kong Futures Exchange on 30 April 1999 (which was concluded in July 1999) and to the Securities and Futures Commission.  The Defendant sought an order that the Plaintiff be compelled to apply to Hong Kong Exchanges (HK Futures Exchange having merged with it) and the SFC for copies of correspondence, documents and tapes passing between it and these bodies in connection with the complaint.  The Defendant also sought an order that the Plaintiff verify on oath that it did not receive and possess copies of a futures index trade recap which the Defendant’s wife said she had faxed to it.

Chu J’s order

8.  After a hearing on 7 March 2005, Chu J dismissed both summonses for reasons given in writing on 30 March 2005.

Appeal from Chu J’s order

9.  On 24 March 2005 the Defendant filed a Notice of Appeal from Chu J’s order.  The appeal was set down on the same day.  This was followed by a Supplementary Notice of Appeal filed on 10 May 2005. 

10.  However there was no application to fix a date for hearing the appeal until more than a year later, on 24 May 2006, after chasers from the court to the Defendant in March,  April and early May 2006.

Fixing dates for hearing of appeal

11.  Be that as it may, on 21 June 2006 the parties through their respective representatives (the Plaintiff’s solicitor and the Defendant’s wife, the Defendant having acted in person since 2002) appeared before the listing authority, i.e. the Deputy Clerk of Court (Appeals).   A date nearly 4 months later – 19 October 2006,  was fixed for the hearing of the appeal.  The written Notice of Hearing was issued by the court to the parties on 28 June 2006.

Defendant’s grounds

12.  The Defendant’s wife has said on affirmation that on the occasion (i.e. 21 June 2006) when the listing authority proposed 19 October 2006 as the first available date for hearing, she had told him that the Defendant would "most likely" be on a business trip that week.  (According to a letter from the Defendant to the listing authority dated 29 September 2006, he said his wife had said that it was "possible" that he might be on a business trip during that week). 

13.  There was apparently another objection lodged on behalf of the Defendant to fixing dates, made on the basis that he would be applying to adduce further evidence. 

14.  In any event, the listing authority dismissed the objection and fixed 19 October 2006 for the appeal. 

15.  It was not until 28 September 2006 that the Defendant wrote to the court saying that he would be travelling on business on 2 October 2006 and would not be able to attend the hearing on 17 October 2006 (the correct date being 19 October 2006).  The following day he was informed by the court that the hearing fixed on 19 October 2006 would not be vacated.  This was followed by the Defendant’s letter of 29 September 2006 saying that he would not be able to attend the hearing on 19 October 2006 (the correct date).  His application was again rejected. 

16.  On 5 October 2006 the Defendant issued the present summonses.  In support of his application he has previously sent to the court (albeit not as an exhibit) a one-way air ticket to Shanghai on 17 October 2006. 

Discussion

17.  There is no merit in either summons.  Dealing first with the ex parte application to call as witnesses the persons present at the appointment to fix dates on 21 June 2006, first there is no procedure known to me for such an application to be made, and secondly, even if there were such a procedure, I would not in the exercise of my discretion make such an order as it would not serve any purpose. 

18.  It would not serve any purpose because even if the Defendant’s wife had told the listing authority that the Defendant would "possibly" or "be likely" to be on a business trip that week and objected to that date, the listing authority would have been acting within his power to override that objection, as Practice Direction 4.1 para. 9 provides (where material) as follows:

"All applications to fix a date for the hearing of any ... appeal should be addressed to the Registrar of Civil Appeals, who will instruct the Clerk of Court to fix the earliest date available for the hearing of the ... appeal in accordance with the state of the list to which it has been assigned. ... ". 

(Emphasis added).

19.  Paragraph 10 of the Practice Direction goes on to provide (where material):

"All applications to vary or vacate a date fixed for the hearing of an ... appeal must be made to the Registrar of Civil

Appeals who may refer as necessary any or all of such applications to a single judge of the Court of Appeal. ... ". 

20.  As I have said, the Defendant did not make an application to vacate the date fixed until 28 September 2006, and I now turn to the substance of that application which is the basis of the Defendant’s summons to vacate.

21.  It is of course within the Court’s power to vacate a hearing date but the court’s discretion would not be exercised unless there were good grounds verified by affirmation.  In the present case, the Defendant has filed a number of affirmations but he has focussed his attentions on what he perceives to be improper conduct on the part of the Plaintiff’s solicitors in opposing his application, when the real focus ought to be on what grounds he himself has to persuade the court to vacate the hearing date. 

22.  In this respect the Defendant has only said on affirmation that he will be on a business trip on 19 October 2006.  The airline ticket he has attached in his correspondence to the court suggests that he would be flying to Shanghai on 17 October 2006. 

23.  I take into account the fact that Shanghai is just a 2½- hour flight, the hearing on 19 October 2006 is only set down for 2 hours in the morning and that the Defendant has known of the court fixture for 4 months. 

24.  The Defendant has not proffered any evidence to say what business he is in; irrespective of whether he is self-employed or in employment, whether he has attempted to get someone else to fill in for him for that morning of 19 October 2006; what business appointment he has for that morning; when that appointment was fixed; whether he has made any attempts to move it, and if so, why he has not been able to move it.  It is only if there was such evidence that the court could even begin to consider whether to exercise its discretion to vacate the hearing date.  A bare assertion by the Defendant from the bar table today saying that he had tried to re-arrange his schedule but was unable to do so (without any particulars) is not sufficient for these purposes.

25.  Whatever Master de Souza has ordered in relation to another appeal, i.e. CACV 184/2006, is a matter for the master’s exercise of his discretion.  I do not know what materials were put before the master and in any event, his decision is not binding on me.      

Order

26.  In the circumstances, the summonses must be dismissed.  I will now hear the parties as to costs.   [After submissions on costs] In the exercise of my discretion, I make no order as to costs.