PAN HAIFEI v. TAI KAREN KAI LUN

HCA 1017/2021

[2025] HKCFI 2963

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1017 OF 2021

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D E C I S I O N

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1.  The trial of this case was scheduled to commence on 3 July 2025, with 6 days reserved.

2.  On the day before the commencement of the trial, on 2 July 2025, the Court received a letter from the defendant claiming that she was being hospitalized in a hospital in Suzhou in the Mainland and could not attend the trial. A simple one-page photocopied hospitalization record from Suzhou Kowloon Hospital (苏州九龙医院) (“the Suzhou Hospital”) has been produced to purportedly support the fact that the defendant was hospitalized for the complaints of “chest discomfort and breathing difficulty”. The defendant asked the Court to adjourn the trial.

3.  On the first date fixed for the trial on 3 July 2025, the defendant did not turn up.

4.  I made the following directions to the parties after hearing submissions from the plaintiff’s counsel:-

(a)  Since the trial is a “milestone date” under Order 25 rule 1B of the Rules of the High Court, the Court is not minded to adjourn the trial based on the last minute attempt by the defendant to try to adjourn it by way of an informal letter and some simple medical certificates allegedly issued by a hospital from Suzhou for some subjective complaints and conditions.

(b)  The Court therefore directed the trial to be adjourned to Tuesday, 8 July 2025 at 10:00 am to hear any formal application (by way of summons and supporting affirmation with proper medical evidence) from the defendant to adjourn the trial, if any.

(c)  In the absence of any such formal application to be made by the defendant, the trial will proceed as scheduled and the plaintiff is at liberty to call evidence to prove his case in the absence of the defendant on that day.

(d)  The Court will reserve the costs of today to be dealt with until the adjourned trial date on 8 July 2025.

5.  The defendant was originally represented by a firm of solicitors until she filed a notice to act in person in March 2023. She had been acting in person since that date until yesterday, ie 7 July 2025, when a notice to act has been filed by her present solicitors.

6.  The defendant had appeared before me at the Pre-trial Review (“PTR”) of this case on 2 April 2025 and had no difficulty in understanding the directions of the Court gave in regard to the lodging of the opening submissions and list of authorities prior to the trial. She also appreciated the importance of the trial dates fixed for the hearing in this case.

7.  On 18 June 2025, the defendant wrote to the Court to ask for indulgence to lodge her opening submissions a week later due to the fact that she had allegedly been infected with COVID-19 in middle of June and was granted sick leave of 3 days by a doctor at the Canossa Hospital (Caritas) (“Canossa Hospital”). A sick leave certificate dated 18 June 2025 by a resident doctor certifying that the defendant was suffering from COVID-19 and had attended the outpatient clinic of Canossa Hospital has been produced by the defendant. She was given 3 days of sick leave from 18 to 20 June 2025.

8.  The Court granted her application and allowed her to lodge her opening submissions out of time. The defendant has duly lodged her opening submissions on 27 June 2025.

9.  On 7 July 2025, the defendant’s current solicitors filed a summons seeking “the trial of this Action be adjourned to new dates to be fixed in consultation with counsel’s diary, with 6 days reserved” (“the Summons”). A draft affirmation of the defendant (“D’s Affirmation”) has been exhibited under her solicitor’s affirmation to support the application.

10.  In D’s Affirmation, she deposed to the fact that she has been and is still being hospitalized in the Department of Respiratory and Critical Care Medicine (呼吸与危重症医学科) of the Suzhou Hospital since 1 July 2025. On this occasion, the defendant is able to produce a full medical report from the doctor in charge from the department certifying that she has been admitted into the Suzhou Hospital since 1 July 2025 suffering from some severe symptoms ranging from severe chest tightness (胸悶) and breathing difficulty (呼吸困難). Such symptoms were reported to be more severe at night which were accompanied by irregular heartbeats and headache. Examination revealed that the oxygen level in her blood has dropped and her heartbeats were irregular. It has been assessed by the doctor at the Suzhou Hospital that her condition was serious enough to warrant immediate hospitalization. The diagnosis made by the doctor in charge was chest discomfort, breathing difficulty and complications arising out of virus infection (病毒感染後遺症). It is estimated by the doctor in charge that the defendant needs to be hospitalized for a period of 1 to 2 weeks, depending on her progress and response to treatments.

11.  In D’s Affirmation, the defendant mentioned the fact that after her sick leave at Canossa Hospital expired, she thought she was on track to recovery. While she knew that the trial of the action would commence on 3 July 2025, she nonetheless went on a trip to Suzhou (via Shanghai) on 28 June 2025 allegedly on some unspecified “urgent matter”. She planned to return on the day before the trial on 2 July 2025 only. A copy of her air ticket has been produced to confirm the fact that she flew to Shanghai on 28 June 2025 and was scheduled to return to Hong Kong in the afternoon of 2 July 2025.

The defendant’s submissions

12.  Ms Ivy Ho who has limited instructions to represent the defendant in this application to adjourn the trial acknowledged the fact that the trial dates fixed for this action are “milestone dates” under Order 25, rule 1B (8)(b) of the Rules of the High Court (“RHC”). They are not to be varied unless the applicant is able to establish there are “exceptional circumstances” to do so. As to what are considered as “exception circumstances” and what are not, the editors of the Hong Kong Civil Procedure 2025 (“HKCP”) have listed out a number of cases as illustration under §25/1B/1 thereof. I do not intend to repeat them here.

13.  At the end of the day, it is a balancing exercise for the Court to ensure there will be just resolution of disputes in accordance with the substantive rights of the parties on one hand and not allowing a party to abuse our system by lightly try to vary the milestone dates like the trial dates on the other: Order 1A, rule 2(2) of the RHC. Whilst the underlying objectives under Order 1A, rule 1(b) is to ensure a case to be dealt with as expeditiously as reasonably practicable, it has never been an absolute bar against adjournment in appropriate circumstances. The Court retains a wide discretion whether to allow an adjournment of the trial: See Order 35, rule 3 of the RHC and §35/3/1 of HKCP.

14.  It has been accepted by the Court that sometimes even milestone dates like the dates fixed for the trial of an action must on occasion yield to the vicissitudes of life. It has been said that illness of a party or a necessary and important witness may, depending on the circumstances of the case, justify vacating and re-fixing the trial dates: See Law Yin Pok Bosco v Dr Chan Yee Shing HCPI 369/2010 (unrep, 2 November 2012; Fok JA) at §§9-11.

15.  However, as stated by Fok JA (as he then was) at §14 in Law Yin Pok Bosco, while an applicant’s application may appear to be persuasive in first glance, it is right for the Court to step back and consider the substance and timing of the application in the wider context of the litigation as a whole. A number of factors have been taken into account by the Court of Appeal in that case in exercising its discretion of whether to vary the milestone dates of a trial, and if so, under what terms.

16.  In this case, firstly, the application to adjourn was only made the date before the commencement of the trial by letter with a simple one- page hospitalization certificate from the Suzhou Hospital with some general and subjective complaints stated. This is in the context that the defendant was fully aware of the trial dates had been fixed for the action since early 2024. It was only upon the Court’s specific directions on 3 July 2025 that she has now instructed solicitors and counsel to act on her behalf and applied by way of the Summons together with a proper medical report in support to try to adjourn the trial.

17.  Second, while fully aware of the trial dates, the defendant choose to travel to Suzhou on some unspecified “urgent matter”, only planning to return the date before the commencement of the trial. This is particular in light of the fact that she was still recovering from the COVID-19 infection which required her to have 3-day sick leave in late June. This seems to me to be a rather irresponsible act on the part of the defendant which shows little respect to the rights of the plaintiff and the precious judicial resources of the Court.

18.  At the hearing today, Ms Ho was not able to satisfactorily explain to the Court on the above matters. In particular, she has no instructions from the defendant to say what the unspecified “urgent matter” was which required her to travel to Suzhou just a few days before the commencement of the trial. Also, Ms Ho cannot explain on the defendant’s behalf of why she had only booked the return flight to return to Hong Kong on the date before the commencement of the trial.

19.  For the record, Mr Tang for the plaintiff has objected to the defendant’s adjournment application. As Mr Tang says it is most unfair to the plaintiff who is ready and willing to prove his case in Court. The defendant’s last minute applications to adjourn the trial – not once but twice – only has upset and frustrated those milestone dates. His client is most reluctant to see any re-fixing of the new trial dates in consultation with counsel’s diary as suggested by the defendant in the Summons as this would mean months if not more than a year before those new trial dates can be found in the Court’s diary. However, Mr Tang has fairly prepared to consider on his client’s behalf a short adjournment of the trial subject to some stringent conditions on costs.

Court’s findings

20.  Despite there is now a medical report made available to the Court certifying that the defendant may be suffering from some physical conditions which would require her to be hospitalized, I remain extremely skeptical about the genuineness of the defendant’s application. In particular, I am not satisfied with her explanation why she had to make a trip outside of Hong Kong on some unspecified “urgent matter” when she knew since early 2024 that these trial dates had been fixed.

21.  Also, for the first time in court today, Ms Ho informed the Court that the defendant now intends to instruct a different counsel to conduct the trial on her behalf. Considering that she has been acting in person since March 2023 and was quite happy to attend the PTR before me by herself on 2 April 2025, this comes as a total surprise and added to my suspicion of how she might have deliberately put herself in a situation so that she could have the case adjourned and to be represented by counsel at the adjourned trial.

22.  Taking the matter in the round, while I remain very skeptical about the genuineness of the defendant’s application and take the view that she has almost deliberately placed herself in this situation in order to avoid the trial, I am prepared to give her one last chance to defend the matter at the trial, subject to some strict conditions.

23.  I am therefore prepared to allow a short adjournment of the trial to early August 2025 before me with the condition that the defendant to pay all costs occasioned by the two adjournments upfront and on an indemnity basis, such costs will be summarily assessed by the Court and will be ordered to be paid forthwith.

24.  Hence, after hearing further submissions from counsel on both sides, the Order I make for the defendant’s application to adjourn the trial today under the Summons will be as follows:

(1)  The trial is adjourned to 4 August 2025 before Deputy High Court Judge Andrew Li (with an estimated length of 6 days, with 5 to 8 August and 15 August 2025 reserved).

(2)  On or before 22 July 2025, the defendant shall pay the plaintiff’s costs of and occasioned by the adjournment of the trial on 3 July 2025 and 8 July 2025, including the costs of the Summons, summarily assessed at HK$250,000, as well as the assessed costs of HK$18,000 payable under the previous Order of Master A Ho on 15 February 2024 which the defendant was ordered to pay within 28 days but had not paid.

(3)  In default of compliance with paragraph (2) above, the defendant shall be barred from relying on and advancing her defence and counterclaim at the trial and the plaintiff may proceed to prove his case.

25.  I would like to thank Ms Ho and Mr Tang for their submissions.