AU YEUNG PUI CHUN v. CHENG WING SANG

HCA 2434/2015

[2020] HKCFI 1940

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2434 OF 2015

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D E C I S I O N

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1.  This is an action brought by the plaintiff in 2015 against one of her children, the defendant, for declarations that the defendant holds his interest in a residential property in Hong Kong on trust for the plaintiff.  The defendant counterclaims a declaration that he has beneficial ownership of the property as to 90% or some other proportion as the court may assess.

2.  Witness statements were exchanged in March 2018.  On the plaintiff’s side there are five witnesses, including the plaintiff herself, and on the defendant’s side, two, being the defendant and his wife.

3.  In September 2018 the plaintiff was given leave to set the case down for an 8‑day trial.  The trial was originally fixed to commence before me on 9 March 2020 but was adjourned due to the general adjournment of court proceedings imposed by reason of public health considerations.  The action was re‑fixed to be tried before me on a relatively early date, commencing 20 August 2020, having regard to the age and health conditions of the plaintiff.

4.  By letter to this court dated 24 July 2020, the defendant’s solicitors requested the court to re‑fix the trial to a later date.  By letter dated 27 July 2020 the plaintiff’s solicitors voiced their objection, to which the defendant’s solicitors replied by letter of 28 July 2020. 

5.  As it seems to me desirable that the parties should know as soon as practicable where they stand, I shall state my decision and set out my reasons with brevity.

6.  Although the application should have been made by summons supported by an affidavit, I shall treat the defendant’s solicitors’ letter of 24 July 2020 as the application for deferring the trial and vacating the existing trial dates. The grounds advanced for the application are mainly as follows:

(1)  The defendant and his wife reside in Switzerland.  To travel to Hong Kong for the trial they would be subject to quarantine requirement for 14 days under the Compulsory Quarantine of Certain Persons Arriving at Hong Kong Regulation (Cap 599C), and may be subject to a similar requirement upon their return to Switzerland after the trial, which would cause “severe practical hardship and serious prejudicial effects” to them as they would have to leave their respective work for at least 43 days all together including travelling time. 

(2)  The defendant and his wife would also be exposed to significant health risks during the flight, and their attendance at trial would bring health risks to other court users.

(3)  Video‑link is “not applicable” to the defence witnesses as the plaintiff’s solicitors are unable to arrange for their staff to be present as observers at the place where they would give evidence, not to mention the time difference between Hong Kong and Switzerland.

(4)  As the plaintiff’s son, the defendant is concerned that the plaintiff is 90 years old and particularly vulnerable if infected.

7.  For the following reasons, I do not think the defendant has made out grounds for vacating the trial dates:

(1)  Under Order 25, rule 1B(3) of the Rules of the High Court, the court should not grant an application by a party to vary a “milestone date” (such as trial dates) unless there are exceptional circumstances justifying the variation.  Practice Direction 5.2 (on Case Management) at paragraph 42 emphasises that milestone dates are immovable save in the most exceptional circumstances.

(2)  As regards potential health risks for the plaintiff, this is a matter for the plaintiff to consider and decide with such advice as she may obtain.  The fact that the plaintiff is 90 years old is also a factor why there should not be further delay of the trial.  Apart from her age, there is some indication that she is showing signs of dementia.  This would suggest that the earlier her evidence is received by the court, the better from the point of view of the administration of justice.

(3)  The action was brought in 2015 and further delay would be highly undesirable.  When the trial was adjourned in March this year and new dates were being sought, the defendant’s side had confirmed in a joint letter to the court dated 5 March 2020 that they would be available to attend the trial in Hong Kong if it was held during 20‑31 August 2020.  The August dates were therefore fixed as mutually acceptable dates and chosen at a time when there was already a coronavirus outbreak worldwide.

(4)  The fact that inconvenience or even some hardship would be caused because of the quarantine requirements is not necessarily a sufficient ground in itself for adjourning the trial.  There is no suggestion that it would be practically impossible for the defendants to leave their positions for the period in question. 

(5)  Two of the plaintiff’s witnesses, namely, Leung Yuen Fun and Patsy Cheng, have already travelled from the United States to Hong Kong for the trial and presumably have gone through or are going through the quarantine requirement.  There is no reason why the defence witnesses should not be expected to do the same.

(6)  Furthermore, even if the defence witnesses could not come to Hong Kong, it is simply not good enough for the defendant to assert that video‑link could not be used.  In principle, it is open to a party to apply for video‑link to be used even for factual witnesses’ evidence, if justifications exist for that course.  The time difference between Hong Kong and Switzerland could be accommodated, if necessary, by adjusting the sitting hours.  The failure to investigate or make use of the potential availability of video‑link is a relevant factor against vacating the trial due to the inability of a witness to attend the trial in person: Arko Ship Leasing Ltd v Winsmart International Shipping Ltd [2013] 2 HKLRD 121, §§17, 18 & 36.

8.  The defendant’s application is dismissed with costs nisi to the plaintiff.