CHAN SHEK v. MILKYWAY IMAGE (HONG KONG) LTD

                 HCPI 295/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 295 OF 2006

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D E C I S I O N

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1. This is an application for the adjournment of the trial which has been fixed to commence on 18 September 2007 with four days reserved.  The trial dates were fixed on 19 July 2007.  

2. The defendant changed solicitors although I am told that the handling solicitor has been the same.  On 9 August 2007 the defendant’s present solicitors took over this case and from what I have been told it was then that the defendant was contacted as regards the further conduct of the action. 

3. On 14 August 2007 it became clear that one of the defendant’s witnesses Mr To Chow Kwan, alias Yuen Bun would be unavailable to appear as a witness at the trial commencing on 18 September.  That witness, I am satisfied is a material witness for the defendant he being the martial arts director who choreographed the scene where the plaintiff was injured whilst performing a stunt in a martial arts film. 

4. Although Ms Chhoa has persuasively argued that another witness is available who can touch upon the matters that Mr Yuen Bun is able to speak about, it seems to me that Mr Yuen Bun would be an important witness from the defendant’s point of view.  Unfortunately he is not available to attend the trial on 18 September.  In the circumstances and to ensure that the defendant has a fair trial in the matter, regrettably I am persuaded that the matter ought to be adjourned to give that witness an opportunity to attend at the resumed dates for trial.  

5. I do not think that the matter should be prolonged too long.  I am only prepared to vacate the trial dates with an order that the trial be re-fixed on dates to be fixed in consultation with counsel’s diary but not to be fixed before 1 November 2007.  It appears from the evidence before me at the moment that that particular witness would be available after October 2007.  That is the order I make. 

6. It seems to me that this matter has really been brought on by the defendant itself.  Provided the plaintiff is compensated by an order for costs I see no prejudice to the plaintiff in the adjournment of the trial.  I am not persuaded that I should make an order that indemnity costs should be given to the plaintiff.  However, in view of the fact that the defendant took its time to try and locate this witness even after dates were fixed on 19 July 2007 it seems to me that the costs order should be that the costs of and occasioned by the adjournment including the costs of today’s application be costs to the plaintiff to be taxed on a common fund basis such costs to be taxed and to be paid forthwith.  I see no reason for delaying the payment of those costs.