CHAN TSAT SAM v. THE URBAN COUNCIL

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RULING

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1. On the 11th July 1985, the Urban Council made an order pursuant to Regulation 34 of the Hawker By-laws requiring the applicant to vacate the cooked food stall that he at present operates at No. 9 Tung Choi Street, Mongkok, and to move to a new site allotted to him by the Council in Tai Kok Tsui Hawker Bazaar Canton Road Cooked Food Centre. The applicant's appeal against this order to the Markets and Street Traders Review Sub-committee was dismissed on the 12th June 1986.

2. Deputy Judge Cruden made an order on the 28th October 1986 granting the applicant leave to apply for judicial review of the removal order and to quash the order dismissing the appeal.

3. The motion for judicial review came before me on the 27th January 1987 when Mr Chu Tak appeared for the applicant and Miss Hartstein, appeared on behalf of the Attorney General. At that hearing, Mr Chu applied for an adjournment on the grounds that the applicant intended to file further evidence in reply to a late affidavit that had been served by the Attorney General on the applicant's solicitors on the previous day.

4. After considering the application, I adjourned the motion until today, with tomorrow's date also reserved which dates had been specifically agreed with both counsel. Leave was also granted for the filing of further evidence together with an order that the applicant should set out the names of the parties in the various documents that have been filed.

5. However, no further evidence has been filed by the applicant nor have any steps been taken to set out the details of the parties.

6. When the motion came before me this morning, Mr Chu did not appear on behalf of the applicant because last week he returned the brief to his instructing solicitors, having informed them that he was engaged in a criminal case that is proceeding in the Tsuen Wan District Court. The applicant's solicitors were unable to find another counsel in time to represent the applicant today, so that with my permission, Mr Lam who is the applicant's solicitor, applied for an adjournment to a date to be fixed.

7. The facts surrounding the application are set out in Mr Lam's affidavit which was sworn today. He refers, apart from the difficulties in engaging another counsel, to the late filing of evidence by the Attorney General upon which he says that the applicant has not had sufficient time in which to reply. This complaint is wholly irrelevant, for the applicant, as I have said, has himself failed to file further evidence for which leave was granted on the 27th January whilst the matters contained in this evidence are not new and do not provide sufficient grounds to justify an adjournment. The only substantial reason that has been put forward is Mr Chu's conduct in not fulfilling his obligations as a member of the Bar. May I say that his conduct is quite unacceptable and will be drawn to the notice of the Bar's Disciplinary Committee for such action as they deem fit to take.

8. Miss Hartstein, quite naturally, opposed the application for the adjournment. She was, in fact, not informed of the proposed application until today which, upon the facts, is inexcusable and reveals a total lack of courtesy on the part of Mr Lam. Miss Hartstein informed me that she has been working on the case over the weekend. She also referred to personal circumstances that will, in all probability if I grant the application, result in the hearing having to be delayed until June or perhaps July. Quite clearly, there has been considerable prejudice to the Urban Council by virtue of various delays that have occurred for one reason or another and it is undesirable that the hearing should again be postponed. I have carefully considered whether I should refuse the application for the adjournment having regard to the matter of delay and also to Miss Hartstein's personal circumstances upon which she addressed me this morning. However, it is through no fault of the applicant that he is not represented by counsel and if I refuse his application, he will no doubt be very aggrieved that his case has not been determined upon the merits.

9. Although it is highly desirable that Miss Hartstein should conduct the case for the Attorney General, I do not consider, with the greatest respect to her, that it should cause any difficulty for another Crown counsel to take over the reins at a relatively short notice if she is unable to conduct the defence at a later date. In my opinion and in the exercise of my discretion, I shall grant the application and adjourn the motion for hearing until Wednesday, the 15th April at 10:00 a.m., with Thursday, the 16th April also reserved. I must emphasise that no further application for an adjournment will be considered on that date.