WING HANG BANK LTD v. KIT CHOY DEVELOPMENT LTD AND ANOTHER

HCMP5172/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5172 OF 2002

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HCMP220/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 220 OF 2003

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D E C I S I O N

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1.  This is an application by Mr Bing Choy, the 2nd defendant in these proceedings, for the trial dates of these originating summons proceedings commenced by Wing Hang Bank Limited, currently fixed for 6 October 2005, to be vacated.

2.  According to Mr Choy’s summons, the basis upon which the application is made is that he wishes to have the matter adjourned pending the resolution of his further appeal from the decision of the Court of Appeal affirming my decision not to strike out the bank’s claim in these proceedings.

3.  The application to strike out was based on a number of grounds which I dealt with in my judgment on 23 July 2004.  Mr Choy was not satisfied with that decision and appealed, as he was entitled to, to the Court of Appeal.  That appeal was heard on 14 July 2005 and a judgment was rendered by the Court of Appeal on 20 July 2005 dismissing Mr Choy’s appeal.  Mr Choy now indicates that he wishes to take the matter further, to the Court of Final Appeal.  With that in mind, it appears that he has taken out an application for leave to appeal but that application will not, it seems, be heard by the Court of Appeal until February 2006.

4.  Even if that application is successful, it will be a considerable time before the appeal will be heard by the Court of Final Appeal.

5.  In my view, it is not the normal course for the court to postpone the hearing of proceedings pending further appeals unless there are exceptional circumstances such as a very strong prospect of the appeal being successful.  With respect to Mr Choy, I cannot see that that is this case here, and I therefore would not accede to an application to adjourn on the basis of an intended further appeal or application for leave to appeal to the Court of Final Appeal.

6.  At the hearing today, Mr Choy raised a new matter which was not adverted to in his summons.  He drew my attention to the decision of the Court of Appeal in Civil Appeal No. 21 of 1996, Shung Wah Ming v The Estate of Chan Kin Mo, deceased, and Lau Loi Kai, in which the Court of Appeal made certain observations as to the appropriateness of the use of the originating summons procedure and of determining a matter on the basis of affidavit evidence where there were substantial factual disputes.

7.  Mr Choy has submitted that, in this case, there are factual disputes that arise in relation to the circumstances of the cancellation of the guarantees which he and the company with which he is associated (the 1st defendant, Kit Choy Development Limited) gave to the bank.

8.  However, it seems to me that, on the basis of the material before the court, this particular aspect of the matter has been fully canvassed in the affidavit evidence before the court.

9.  It does not, at the moment, appear to me that there is any significant factual dispute as to what happened, namely, that the bank from time to time wrote to Mr Choy seeking his instructions on whether or not to continue with the facilities that they had granted to Mr Choy and Kit Choy.

10. Equally, there does not seem to be any real factual dispute that Mr Choy wrote back indicating that he wished the facilities in question to be terminated.

11. The question that arises is, as I think I have explained in my judgment of 23 July 2004, what if any effect this exchange of correspondence might have had on the facilities.

12. That, it seems to me, does not raise any real factual issues and, for that reason, I do not see that this is a case in which either pleadings or discovery are necessary in order to enable the matter to be disposed of fairly.

13. If there is an application for cross-examination of any of the deponents on their affidavits, that application can be made at the hearing and will be dealt with then.  If the court determines that it is appropriate for there to be cross-examination, then that will take place and it may be that the matter will be delayed slightly or the hearing will be prolonged while that takes place.

14. Nonetheless, it seems to me that the issues in this action so far as the question of the continuation of the guarantees or their cancellation is concerned are reasonably well defined and the parties should be in a position to make their submissions on those issues and, if it is appropriate, cross-examine on those issues at the trial without further delay.

15. In those circumstances, I do not think that I should accede to the application today, and I therefore dismiss the application.

16. In the event that Mr Choy is ultimately successful in obtaining leave to appeal to the Court of Final Appeal and successful in any appeal before that court, there will, no doubt, have been a hearing that will have proven to be unnecessary but that, it seems to me, is a matter that can be addressed by an appropriate order for costs at the end of the day and so, for those reasons, I dismiss this application.

(Submissions on costs)

20. I will make an order for costs in favour of the plaintiff in respect of this hearing.