P v. D1 AND ANOTHER

DCCJ 811/2020

[2025] HKDC 1337

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 811 OF 2020

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DECISION

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1.  On 29 April 2025, I gave case management directions for the conduct of this action, which had been reported as P v D1 [2025] 2 HKLRD 1018 [2025] HKDC 744 (“the April Decision”). In this Decision, I shall adopt those abbreviations used in the April Decision.

2.  By the April Decision, I adjourned the part-heard trial for this matter to 2:30 pm today (4 August 2025) for further directions, giving the Official Solicitor more than sufficient time to receive and digest the papers for this matter and to propose a way forward.

3.  According to an affirmation filed and served on behalf of the Official Solicitor, which I have read, the Official Solicitor received the trial bundle, the audio recordings for the trial, and the transcript for the trial, by 27 May 2025.  I am aware the transcript has 417 pages as I was provided with a copy. The deadline set by myself for the Official Solicitor to lodge proposals vis-à-vis the way forward was 14 July 2025, ie 48 days from 27 May 2025.

4.  After the deadline, on 28 July 2025, the Official Solicitor filed and served a summons (“the Summons”) asking for “a further directions hearing” before myself with 2 hours reserved, and for that further hearing to be listed “not before 15 October 2025”.

5.  Mr Samuel Chan, Counsel for the Official Solicitor, helpfully lodged written submissions on 30 July 2025, seeking to persuade this Court to make an order in terms of the Summons.  He elaborated on those written submissions orally today.  I have also read and heard submissions from Mr Dicky Cheung, Counsel for P, who was physically present at the trial.  D2 acted in person and told me orally he had no objection to any adjournment application.

6.  Having considered all information, evidence and submissions my observations are as follows.

7.  Firstly, there was no acceptable reason why the deadline of 14 July 2025, ie 48 days from 27 May 2025, for the Official Solicitor to lodge written submissions, was not complied with.  It was my finding of fact (see §8 of the April Decision) that D1 had no mental capacity to understand this litigation or to give litigation instructions.  That was the whole point of the April Decision.  That being the case, trying to have a meeting with D1 was completely pointless, and should have been known to the Official Solicitor to be completely pointless.  D1 confabulates so that nothing he says can be relied upon. The focus of the Official Solicitor should have been to read the trial bundle plus the transcript and come up with an independent view as to the best way forward, bearing in mind the huge public interest that he protected the interests of MIPs using public funds.  Indeed, as pointed out in an open letter from CW Lawyers to the Official Solicitor dated 26 June 2025, the Official Solicitor’s statutory duties are public duties.  Where, as here, the appointment was made by this Court under Section 4(1)(a) of the Official Solicitor Ordinance, Cap 416, the Official Solicitor was obliged to act as required by this Court without asking for costs or indemnity for costs and to perform his public duties diligently.  Costs recovery would have to come later, and by way of a proper Court application.  The papers for this case inclusive of the transcript could have been digested by any competent lawyer within 3 to 7 days.  An independent view as to the best way forward could have been formed within 3 days thereafter.  Investigations, if needed, could have been carried out and completed by the Official Solicitor within June 2025.  With respect, the delay on the part of the Official Solicitor was unacceptable.

8.  Secondly, should the Official Solicitor need a time-extension the only proper way to make the application was to take out the Summons, with a supporting affirmation, as the Official Solicitor eventually did.  His previous attempt to simply write letters was with respect plainly wrong for those reasons set out by the Hon. Mr Justice Herbert Au-Yeung in Holinail v Matthias Pou and Others [2025] HKCFI 1157, with which I respectfully agree and gratefully adopt.

9.  Thirdly, in the Summons, the Official Solicitor actually asked for “liberty” to conduct mediation, which was redundant.  Mediation never requires leave or “liberty” because it is a voluntary arrangement which can be made by the parties between themselves at any time.

10.  Fourthly, under the post-CJR Order 1A rules 1, 2 and 4 of the Rules of the District Court, Cap 336H, I am duty-bound to actively manage this case to ensure that it is being dealt with as expeditiously as reasonably practicable.  Parties to a dispute are entitled to expect a resolution within a reasonable time, and cannot be asked to wait indefinitely.

11.  Fifthly, I need to balance the above with the need to be fair to the Official Solicitor and his substantive rights and in this connection, I did notice the Official Solicitor had on 24 July 2025 belatedly started making investigations.  While I am of the view that the delay was unacceptable, all things considered, a short time-extension seems tolerable.  Mr Cheung for P did not object to a time-extension as such for as long as it would be short and with consequences.

12.  All things considered, I hereby make the following order: -

(1)     There shall be a further directions hearing before DDJ Kenneth KY Lam at 10:00 a.m. on 29 August 2025 with 2 hours reserved (“Directions Hearing”).

(2)     The Official Solicitor shall lodge and serve full written submissions, with proposals vis-à-vis the way forward, by 4:00 pm on 25 August 2025, failing which directions may be given without considering his position.

(3)     P and D2 shall lodge and serve full written submissions, with proposals vis-à-vis the way forward, by 4:00 p.m. on 27 August 2025, failing which directions may be given without considering their position(s).

(4)     Liberty to apply.

(5)     Costs reserved.

13.  I thank Mr Dicky Cheung and Mr Samuel Chan for their most able assistance.