GENG HUA ZHONG AND ANOTHER v. LI SHU HON AND ANOTHER

HCCW 403/2017

[2019] HKCFI 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO 403 OF 2017

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REASONS FOR DECISION

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1.  By a fax dated 9 April 2019, Messrs Stephenson Harwood (“the Solicitors”) sought the assistance of Mr Justice Godfrey Lam and/or myself in respect of the fact that they had obtained consent orders from both of us in respect of the same consent summons dated 25 March 2019. I granted an order in terms on 25 March 2019. G Lam J granted an order in terms on 27 March 2019.

2.  When this came to my attention on 10 April 2019, I directed that, by 5 pm on 11 April 2019, the Solicitors file evidence to explain how this had happened, and submit a skeleton argument addressing the appropriate steps to be taken.  I further directed that they attend a hearing before me on 12 April 2019 at 9:30 am.

3.  Pursuant to my directions, I received the affirmation of Ivan Chu Kwong Ng dated 11 April 2019, and a skeleton argument by John Hui dated 11 April 2019.

4.  The following is what has happened:

(a)   The Solicitors submitted a consent summons dated 18 February 2019 in HCA 8/2017.  This was returnable before me on 26 March 2019.

(b)   Prior to the hearing, I noticed that the consent summons sought (amongst other things relevant to HCA 8/2017) a validation order in light of a winding-up petition HCCW 403/2017. On 21 March 2019, I directed that the validation order ought to be obtained within HCCW 403/2017, and if an appropriate consent summons could be obtained in that respect, it could bemade returnable before me along with the HCA 8/2017 consent summons.

(c)   A consent summons in HCCW 403/2017 was filed on or around 25 March 2019.  Although, on its face, it was stated to be returnable before me, the Court Registry listed the matter before Mr Justice Godfrey Lam.

(d)   This was noticed by the Solicitors’ associate on the same day.  The associate directed one of the Solicitors’ clerks to re-fix the summons on the same day.

(e)   So far so good.  But then things went wrong. The Solicitors’ clerk returned to Court but then did not proceed to formally re-fix the summons—rather he telephoned my clerk and suggested he would send a copy of the summons to her directly. A copy of the summons was placed before me, stating on its face that it was returnable before me, but with no notice to me that the summons had been formally fixed before G Lam J.  Having both summonses HCA 8/2017 and HCCW 403/2017 apparently before me, I made orders on both.

5.  In my view of the events, the HCCW 403/2017 summons was not fixed before me, and was not properly before me.  Accordingly, the order made by me on 25 March 2017, purportedly on the HCCW 403/2017 summons, was not a valid order.

6.  My “order” has not been perfected.  Insofar as I am wrong about my order not being validly made, then I am not yet functus officio: CY v WTW[2017] HKFLR 27 at para 10.  For good measure, I withdraw my order dated 25 March 2019 on the HCCW 403/2017 consent summons dated 25 March 2017.

7.  The Solicitors have properly undertaken not to charge to the Petitioner the costs of and occasioned by this hearing.

8.  It is disturbing to note that the events outlined above are not unique.  It goes without saying that it is in the interests of justice that written applications and consent summonses can be made where appropriate in order to avoid unnecessary hearings, both to save costs and to ensure that hearings are available earlier for those cases that need it.  However,written applications and court summonses still obviously take judicial time.  It is contrary to the interests of justice to have judicial time occupied by duplicate applications, where the same has come about through carelessness. Whilst not relevant in this case, it would be an abuse of process to deliberately send written applications or consent summonses to more than one judge, whether with a view to getting the fastest order possible, or with a view to “judge shopping”.

9.  It is imperative that the formal processes are observed for fixing matters.  Whilst it is convenient to both litigants and the judiciary that there should be cooperation between solicitors’ clerks and judicial clerks to ensure, especially in urgent matters, that judges receive necessary reading material as early as possible, such informal arrangements are not a substitutefor observing the formal requirements for addressing applications to the Court.