GE YANHONG v. WANG CHUNYANG AND ANOTHER

HCA 839/2016

[2022] HKCFI 840

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 839 OF 2016

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BETWEEN

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R E A S O N S    F O R    J U D G M E N T

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1.  The trial of this matter was fixed to commence at 10am today, 21 March 2022 (with 7 days reserved).

2.  The matter had previously been fixed for trial to commence on 13 January 2021, but those dates were vacated on 30 December 2020, for new dates to be fixed.

3.  The reason why those trial dates were vacated was because the Plaintiff had made a very late application – only on 21 December 2020 – for her to give her evidence at trial via VCF from the Mainland where she resides. Ng J dismissed that application on 30 December 2020, and he in effect gave the Plaintiff the choice whether to proceed with the trial in January 2021 without her evidence, or for the trial to be re-fixed to permit the Plaintiff to make the necessary arrangements to come to Hong Kong to give evidence. The Plaintiff chose to re-fix the trial dates.

4.  Before that very late application, the Pre-Trial Review (“PTR”) had already taken place, on 8 October 2020. At the PTR, various pre-trial directions were given with a timetable for lodging of trial bundles, a chronology and list of issues, and for the parties’ written opening submissions. As I understand it, none of the relevant directions had been complied with prior to the original trial dates being vacated.

5.  The trial dates were subsequently re-fixed for the dates commencing today. At the time, the Plaintiff had solicitors and she must have been made aware of the dates.

6.  I am told that the 2^nd Defendant was adjudged bankrupt on 21 April 2021. Though the solicitors for the 1^st Defendant have also formally remained on the record for the 2^nd Defendant, I am told that the trustees in bankruptcy have written to those solicitors that they are not minded to interfere with the proceedings or to defend them on behalf of the Bankrupt, and that their stance is neutral in relation to the action.

7.  On 14 February 2022, an order was made permitting the Plaintiff’s solicitors to cease acting for the Plaintiff. No notice to act has been filed by any new solicitors. Nor has the Plaintiff filed any notice to act in person.

8.  It may, therefore, be no surprise that the Plaintiff failed to comply – whether on time or at all – with the timetable previously directed for her to lodge trial bundles, to lodge a chronology and list of issues, and to lodge written opening submissions in advance of this trial.

9.  In my early preparation for the trial, I noted many of the above matters, and directed telephone enquiries to be made of the Defendants’ solicitors as to any update. Upon that enquiry, the solicitors for the Defendants confirmed by letter dated 4 March 2022 that they had heard nothing from the Plaintiff since being served with the order permitting the previous solicitors to cease to act.

10.  Also, late on 4 March 2022, there was the announcement of the ‘General Adjournment of Proceedings between 7 March and 11 April 2022’. Amongst other things, the announcement indicated that individual Judges might give directions as to cases listed for hearing in that period.

11.  Therefore, to avoid any confusion which might have arisen from, and in light of, that announcement, I gave further directions on 7 March 2022 that the trial would commence at 10am on 21 March 2022 as fixed. Those directions were sent to the Plaintiff at her three most recent addresses on the Mainland, to which (amongst other documents) the Certificate of ceasing to act had been sent by her former solicitors.

12.  Further, in light of the previous refusal for the Plaintiff to give evidence via VCF from Mainland China, and the statement in the former solicitors’ affidavit that the Plaintiff had sought a visa for travel to Hong Kong, I directed that the hearing would take place at Court.

13.  I further directed that, at the hearing, I would make such orders or give such further directions as at that time seem to me to be appropriate to the circumstances.

14.  This morning, the Plaintiff failed to appear. In the absence of any prior contact with the Court or with the Defendants, that is perhaps not unexpected. But the upshot is that the Plaintiff did not come to Court to pursue her claims at the trial, the dates of which were fixed a year ago.

15.  Despite being able to think of a number of reasons for that, it is not for the Court to speculate why the Plaintiff has not come to pursue her claims at trial. Nor is it necessary or appropriate to express any provisional view on the relative merits of the claims and defences advanced by the parties.

16.  This morning, Mr Joseph Wong, Counsel for the 1^st defendant, asked me to make various orders dismissing the claim and with the relevant costs consequences. There is no counterclaim by either Defendant.

17.  As stated, the same solicitors as act for the 1^st Defendant remain on the record as acting for the 2^nd Defendant, even if the persons giving instructions for the 2^nd Defendant would have become the trustees in bankruptcy (who have indicated a neutral stance). It would have been better if the representation had been made clear.

18.  Nevertheless, irrespective of the position of representation of the Defendants, where the Plaintiff has not come to the trial to pursue her claim against either of them, I do not think that any different approach between them should be adopted. I can also, as necessary, act on my own initiative as seems apt to the situation.

19.  In those circumstances, and for the above reasons, this morning I made the following orders:

(1) The Plaintiff’s action against the 1^st and 2^nd Defendants be dismissed.

(2) The 1^st and 2^nd Defendants’ costs of and occasioned by the action (including costs of the trial and all costs reserved) shall be paid by the Plaintiff to the 1^st and 2^nd Defendants to be taxed if not agreed, with certificate for Council.

(3) The costs payable under paragraph (2) above shall be first paid by way of payment out from the sum of HK$700,000 (plus any interest accrued) previously paid into Court by the Plaintiff pursuant to the Order of Master Johnny Ma made on 27 February 2018.

(4) Liberty to apply as to implementation of the terms of this Order.

20.  I declined Mr Wong’s oral invitation summarily to assess the costs. This does not seem to me to be a situation in which summary assessment of costs is appropriate.

21.  Subject to the question of taxation of costs, that brings this action to a conclusion.