TAM CHI KOK GABRIEL v. FOK EUGINA

HCA 1859/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1859 OF 1992

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J U D G M E N T

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1. This is an application to adjourn the hearing of a strike out application taken out by the Defendant and a cross-application to file and serve the Statement of Claim out of time by the Plaintiff, which are due to be heard next Friday i.e. ten days away. I need not repeat the background of this dispute between the parties which was set out in my judgment given on 2 December 2002.

2. Mr Alexander Wong, appearing for the Plaintiff in seeking the adjournment, frankly admitted during submission that he had a very difficult task today; indeed he did. Despite the good effort of Mr Wong, I am not persuaded that a good case for an adjournment has been made out.

3. I wish to express my general agreement with the submissions of Mr Horace Wong, counsel for the Defendant. In particular, I have borne in mind the following factors, namely, the long delay involved in the present proceedings, the nature of the Defendant's application i.e. striking out for want of prosecution, the fact that there has already been an adjournment, and the fact that in my order given in December last year when I adjourned the hearing of the Defendant's application as well as the hearing of the Plaintiff's application, I did not provide for the filing of evidence by the Plaintiff after the filing of evidence in reply by the Defendant.

4. The evidence of both parties has already been filed pursuant to the order I made last time, and there has never been any application by the Plaintiff for leave to file further evidence. In those circumstances, the presence or absence of Mrs Cynthia Lee in court, whose reluctance to return to Hong Kong since the outbreak of SARS constitutes the ground of application for the adjournment, should not substantially affect the conduct of the Plaintiff's case in relation to the two applications in question.

5. As to the suggested need for Mrs Lee to give further instructions on the question of fraud regarding possible amendment to the draft Statement of Claim, I note that the draft Statement of Claim was already before the court in December last year and Mrs Lee did not leave Hong Kong until March this year. There was ample time for her to give instructions to the judicial trustee relating to her allegations of fraud; she did not do so.

6. Further, according to evidence, after her return to the States, she refused to meet with anybody to be sent from Hong Kong to the States to take instructions from her there, in fear of contracting SARS. She may well have her own concern, but I need to balance the interests of all parties. I am not for one moment suggesting that her personal concern is not genuine, nor am I suggesting that this is a delaying tactic. But her personal concern must be balanced against all other legitimate considerations in the present case.

7. I also bear in mind Mr Horace Wong's point that indeed the Plaintiff is asking for an indefinite adjournment of the hearing because as we are perhaps only too painfully aware the present outbreak of SARS may still take some further time to subside.

8. So bearing in mind these matters, the submissions of both counsel and the general circumstances of the case, in the exercise of my discretion, I refuse the present application.

9. I order that the Plaintiff pay the costs of today's application to the Defendant forthwith, such costs to be taxed if not agreed.