CHIU SZE HO JULIA v. CHOW KWOK KONG EDDIE

DCCJ 2713/2020

[2025] HKDC 646

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2713 OF 2020

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DECISION

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1.  This is the PTR for a water-seepage trial scheduled to start on 9 June 2025, with 10-13 and 16 June 2025 also reserved.

2.  Ms Valerie Tang instructed by Ng, Au Yeung & Partners acts for the plaintiff (“P”).  Mr Brian Tse of Leung & Lau acts for the defendant (“D”).  By a consent summons filed on 7 April 2025, the parties had agreed interlocutory judgment on liability should be entered against D, leaving the question of relief to be tried.  The original trial dates are by my order dated 8 April 2025 to be kept for determining the question of relief.  I gave many other directions on 8 April 2025, including directing the parties to read my decision in Lau Tin Fai v Gold Regal International Ltd [2025] HKDC 608 which made suggestions as to how the terms of any mandatory injunction in a typical water-seepage case should be drafted so as to ensure they meet the modern requirement of legal certainty.

3.  Given the above, I thought the way forward should be simple, and only a limited number of directions should be given today.  In a most awful turn of events Mr Brian Tse of Leung & Lau, acting on behalf of D, stood up and made a surprise oral application for stay of proceedings, doing so without a summons, without an affirmation, without a skeleton, without prior warning to this court or to his professional opponent, and without any appreciation as to how appalling his behaviour was.  It was an unacceptable ambush.  I do hereby condemn the horrendous behaviour of Mr Brian Tse of Leung & Lau in the strongest terms possible.

4.  Be that as it may, I heard the oral application.  I dismiss it for the following reasons.

5.  As should be well-known, all trial dates in all civil actions are “milestone dates” and §42 of PD5.2 reads as follows: -

“Milestone dates will be immovable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated by costs, will not be treated as exceptional circumstances.”

6.  In light of that, I repeatedly invited Mr Brian Tse of Leung & Lau to identify the alleged exceptional circumstances.  The face of Mr Tse went blank.  It seemed clear to me Mr Tse did not understand the reference to “exceptional” circumstances.  Mr Tse simply alleged, without evidential foundation of any kind, that after 5 years of litigation, the parties were close to a full and final settlement.  It is difficult to see how parties’ negotiations could amount to “exceptional” circumstances because almost all parties in all civil actions would negotiate for settlement throughout the course of the proceedings and as such negotiations are wholly unexceptional.  I invited Mr Tse to explain why negotiations could be viewed as exceptional.  Once again his face went blank.  There was no comprehensible answer.  I hereby reject Mr Tse’s submission that I should stay the whole of the proceedings and vacate the trial dates some 5 years after the commencement of this civil action just because he stood up and boldly alleged the parties were close to a full and final settlement.  Unless and until there actually is a full and final settlement, the trial shall proceed, and both parties should prepare for it.

7.  Practitioners are encouraged to learn §42 of PD5.2, and try to understand what “exceptional” means in this context.

8.  If practitioners need guidance, they can read what was said by DDJ Grace Chow in Chung Suet Wan v Chung Suet Han [2023] 3 HKLRD 359 [2023] HKDC 808 (§§40 to 47).  I agree with what the Learned Judge said.  The best example of things which may well qualify as “exceptional” would be an unexpected medical condition of a key witness.  The case law refers to this as yielding to the vicissitudes of life.   I deliberately used the term “medical condition” as it does not have to be an illness.  I am aware of one case where the condition in question was an unexpected pregnancy, with medical evidence given via an affidavit proving to the satisfaction of the court that the expected due date of the child fell on the date the mother was to give live oral evidence.  That trial being a defamation trial with no objective urgency, the trial was refixed so that the mother could deliver the baby first.  To my knowledge that matter had since settled.

9.  I should record that in our present case D was a man incapable of being pregnant. There was no suggestion he was pregnant or ill.  In any case, it was P’s position that the water-seepage was serious and on-going so that P had a genuine need for a timely mandatory injunction compelling D to take specified actions stopping the water-seepage.  All these point to the need for the trial to go ahead as scheduled.  The trial shall proceed.

10.  The directions I gave yesterday shall continue to be effective.

11.  All things considered, I hereby make the following order: -

(1)  D’s oral application for a general stay of this action and vacation of the scheduled trial dates be dismissed.  The trial shall proceed as scheduled.

(2)  Costs of D’s application be paid by D to P in any event, to be taxed with Certificate for Counsel if not agreed.

(3)  The trial shall be bilingual, with submissions in English and with factual evidence given in Cantonese Chinese.  Experts shall be at liberty to give their oral evidence in English or Cantonese Chinese as they please.

(4)  Parties shall jointly update the trial bundles by 23 May 2025 with documents marked as agreed or disagreed for inclusion as the case may be. Copies of court orders in the trial bundles shall be described more helpfully, with the nature of each court order (e.g., “expert directions”, “deadline for interlocutory applications”, etc.) clearly spelt out in the index, failing which costs of preparation may be disallowed by the Court, and solicitors may also be made the subject of a wasted costs order.  This order should also be inserted into the updated trial bundles.

(5)  P shall lodge and serve both hard and soft copies of P’s written opening list of authorities copies of authorities before 4pm on 26 May 2025.  Soft copies of P’s written opening shall be in both PDF and MS Word formats.

(6)  D shall lodge and serve both hard and soft copies of D’s written opening list of authorities copies of authorities before 4pm on 2 June 2025.  Soft copies of D’s written opening shall be in both PDF and MS Word formats.

(7)  Subject to (2) above, costs of this PTR with Certificate for Counsel be in the cause.

(8)  P’s solicitors do draw up, file and serve this order, and insert a copy of the sealed version into the updated trial bundles as per (4) above.

12.  I thank Ms Valerie Tang for her most able assistance.