WAN YEE SANG v. CHOW KAM CHUEN

DCCJ 1769/2018

[2018] HKDC 898

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1769 OF 2018

(TRANSFERRED FROM HIGH COURT ACTION NO 948 OF 2017)

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REASONS FOR DECISION

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1.  On 19 July 2018, I dismissed the defendant’s Summons dated 16 July 2018 to vacate the hearing on 26 July 2018 for the defendant’s appeal against the decision of Master G C C Lam of the High Court dated 15 January 2018[1]. I said I would hand down my reasons in due course. These are the reasons.

CHRONOLOGY OF EVENTS

2.  The plaintiff commenced his claim at the High Court as HCA 948/2017, for specific performance of an agreement he claimed to have entered into with the defendant.  The agreement concerned the sale and purchase of a property in Ma Wan.

3.  The defendant applied to strike out the Statement of Claim under the inherent jurisdiction of the court, and under O 18 r 19 of the Rules of the High Court.

4.  The defendant’s application came before Master G C C Lam, who, as stated above, dismissed it. There is no need for me to detail the reasons of the learned Master.  But I was told by the parties that the learned Master referred to the fact that the annual rateable value of the property in question was less than HK$240,000.00, so the plaintiff’s claim might fall within the jurisdiction of the District Court.

5.  On 12 April 2018, the defendant’s legal aid was extended to cover the defendant’s intended appeal against the learned Master’s decision.  The defendant’s present solicitors filed a Notice to Act on 20 April 2018.

6.  Also on 20 April 2018, the parties signed a Consent Summons for an order to transfer the plaintiff’s claim to the District Court.

7.  It was only on 18 May 2018 that the defendant filed his Notice of Appeal to challenge the learned Master’s decision.  The grounds of appeal, which was settled by counsel assigned by legal aid, ran up to 15 pages.

8.  The hearing of the defendant’s appeal was originally scheduled to take place on 20 June 2018 before HH Judge Yee.  But Judge Yee acceded to the parties’ joint request to refix the hearing date to accommodate counsel’s diaries.  The parties sought an appointment with the Listing Clerk on 8 June 2018, and had the appeal hearing refixed to 26 July 2018.

9.  It was only on 16 July 2018 that the defendant issued his Summons for adjourning the 26 July hearing, and for refixing it to a date in consultation with counsel’s diaries.

THE DEFENDANT’S SUBMISSIONS

10.  Ms Chu, solicitor appearing for the defendant, submitted that the defendant was re-assigned with another counsel on 12 July 2018.  The reason was that the defendant was allegedly not satisfied with the performance of his previous counsel, when that counsel appeared for him at the Court of Appeal in relation to a case commenced by him against the plaintiff herein.  Ms Chu submitted that the newly assigned counsel needed time to go over the voluminous papers in order to be sufficiently prepared for the appeal hearing on 26 July 2018.

11.  Before I set out my reasons for rejecting Ms Chu’s submissions, there are 2 procedural matters which I must highlight.

12.  First, the defendant’s Summons was fixed to be dealt with on 19 July 2018, ie merely 3 days after it was issued.  Apart from the seeming urgency in the application, I suspect another reason is that the defendant stated the time estimate for the Summons to be 3 minutes.  So, whilst I was already engaged in a trial on 19 July 2018, I was nevertheless asked to deal with the Summons that morning.

13.  Upon my inquiry, Ms Chu submitted that normally applications for adjournment would be granted, and thus there was unlikely to be much dispute for the Summons.  And hence, 3 minutes would be sufficient for the hearing.

14.  I must stress my disapproval of the defendant’s approach in obtaining a hearing date for the Summons.  Through correspondence, the plaintiff (and in my view, quite rightly so) rejected the defendant’s request to vacate the 26 July hearing.  When the defendant took out the Summons, it must be clear that arguments would entail, and his application would not be able to be disposed of within 3 minutes.  The defendant’s estimate was simply unrealistic, to say at least.

15.  The court expects solicitors to exercise their good sense and expertise in providing time estimates.  The defendant’s estimate simply messed up the court’s diary.  It was only fortuitous that the trial I was doing on 19 July 2018 finished evidence early, so I could set aside the time to consider the defendant’s Summons.

16.  Secondly, there was no supporting affirmation to the defendant’s Summons.  I did not get any satisfactory answer when I raised this with Ms Chu, nor the issue whether I could consider what she submitted from the Bar table about the apparent difficulty of the newly assigned counsel in preparing for the 26 July hearing.

17.  I did consider the matters raised by Ms Chu de bene esse.  But I must again register my strong disapproval of the haphazard approach the defendant adopted in asking for an adjournment of the 26 July hearing.  In my judgment, the defendant’s solicitors hopelessly failed to assist me (as required under O 1A r 3) to further the underlying objectives of the Rules of the District Court.

18.  Practitioners should (yet again) be reminded that the court will not hesitate to order costs incurred as a result of poor preparation to be borne by guilty legal representatives personally.  Insofar as the clients are legally aided, the court will not hesitate to order that there should be no Legal Aid taxation with respect to their own costs.

19.  On the merits of the defendant’s application, it is clear to me that the 26 July hearing should not be adjourned, because:-

(1)  The defendant only applied for adjournment 10 days before the hearing, and I could only entertain the application 1 week before to the hearing.  The lateness alone would be sufficient to dismiss the defendant’s application.

(2)  The Court of Appeal hearing in the other matter took place on 13 June 2018.  By that time, the defendant already knew that the appeal hearing in the present case was to take place on 26 July 2018.  But there is no evidence placed before me to show that the defendant alerted the Director of Legal Aid about the urgency of assigning a new counsel to him.  With respect, any delay in the assignment of new counsel was, in my judgment, self-induced.

(3)  By the time the newly assigned counsel came on board, he still had around 2 weeks to prepare for the 26 July hearing.  Without evidence on how much material the newly assigned counsel had to read through, I could not accept that 10 days or so were insufficient to prepare for an appeal against the learned Master’s refusal to strike out the plaintiff’s claim.  The fact that the grounds of appeal ran to 15 pages could not assist the defendant, because those grounds simply rehashed the defendant’s submissions before the learned Master, in breach of clear advice by the Court of Appeal against such practice[2].  The number of pages was simply not an indication about the complexity of the forthcoming appeal.

20.  Ms Chu submitted that an adjournment would be fair to both parties, because the defendant had also applied to amend his Defence and Counterclaim.  An adjournment would allow the defendant to put in the amendment, and thus the court would be equipped with more information about the defendant’s case when hearing the appeal against the learned Master’s decision afterwards.

21.  In my judgment, this argument is misguided, and seeks to put the cart before the horse. Conceptually, it is correct to first proceed with the defendant’s appeal.  If the defendant’s appeal is successful, the need to amend the Defence and Counterclaim will be gone.  This is exactly the reason why, on 19 June 2018, Master S P Yip adjourned the defendant’s amendment application sine die pending the final determination of the defendant’s appeal against the learned Master’s order.

DECISION

22.  At the hearing, I already gave the following orders:-

(1)  The defendant’s Summons issued on 16 July 2018 be dismissed.

(2)  Costs of the Summons be to the plaintiff, summarily assessed at HK$700.00.

(3)  The defendant’s own costs be taxed in accordance with the Legal Aid regulations.