HO CHING CHEONG and Others v. THE BEIJING TRUST INVESTMENT CORPORATION OF THE PEOPLE'S CONSTRUCTION BANK OF CHINA Others

1994, No.MP 425
1994, Nos.14 and 34
(Civil)
(On Appeal from HCA6861 of 1993)

1994, No. MP426
1994, Nos.13 and 35
(Civil)
(On Appeal from HCA9302 of 1993)

IN THE COURT OF APPEAL

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J U D G M E N T

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Godfrey, J.A.:

1. These are appeals from a number of recent orders of His Honour Judge Yam (sitting as a deputy judge of the High Court). An important feature of his orders was the provision they made for a speedy trial of the actions to which they related. On the basis of those provisions, the judge thought it right to adjourn to the trial applications which the defendants had made for discharge of Mareva injunctions granted to the plaintiffs on the same day as the actions were commenced.

2. We are told by counsel for the defendants that the defendants cannot be ready for the trial, now fixed to commence on 14th March 1994, only some 11 days away.

3. The difficulties under which the defendants say they labour are created, so they say, by the Mareva injunctions which have prevented them from raising the money necessary to fund the litigation. The judge had this in mind. He made provision which would enable the defendants to fund the litigation. He gave the defendants leave to sell some property at not less than 85% of its value and, given enough time in which to effect the sale, this would provide enough money.

4. Where, however, the judge seems to me to have gone plainly wrong was in allowing too short a time for the defendants to sell the property, finance the litigation, and prepare for trial. The judge's desire to see an early trial was laudable. But in making an order for a speedy trial, it is necessary to bear in mind that justice must be done to both parties; they must be given sufficient time to prepare their cases so as to be ready for the trial. Since, in the present case, the time was plainly too short, this court is entitled to reconsider the judge's order. (It was submitted to us on behalf of the plaintiffs that the trial dates were in fact fixed by agreement; but there is controversy about that and I do not think it would be fruitful to enter upon that controversy now.)

5. The plaintiffs point out, rightly, that there is only scanty evidence as to the financial position of the defendants. The defendants say they need $3 million to finance the litigation; but, say the plaintiffs, there really is no good reason to believe that the defendants cannot raise it. There is considerable force in this. But, for my part, I do not base my conclusion upon the financial position of the defendants. I base it rather on the inability, in all the circumstances, of the defendants to be ready for trial on the dates fixed. The plaintiffs will of course be inconvenienced by any adjournment. Any plaintiff whose action is delayed by an adjournment is bound to suffer some prejudice, and in the present case, the plaintiffs will be prejudiced because they have set up arrangements, not altogether easy to make, for the presence within this jurisdiction of a number of witnesses from the People's Republic of China. Those arrangements will have to be unscrambled and replaced by fresh arrangements made for a subsequent trial date.

6. But giving the matter the best consideration I can, I think that the greater prejudice is that which will be suffered by the defendants if the trial dates are maintained. The risk of injustice to the defendants if there is not an adjournment, weighed in the balance against the inconvenience which will be suffered by the plaintiffs if there is an adjournment, seems to me to bring the balance down in the defendants' favour. The primary purpose of our system of justice is to ensure that both the plaintiff and the defendant achieve a fair trial. There are issues of fraud here and it would, in my judgment, be wrong to deny the defendants a fair trial upon these issues, which is what will happen if the trial date is not vacated.

7. In those circumstances, I would propose that the trial date be refixed for 10th October 1994. This court is informed that a judge will be available on that date to take the case for the 4 weeks for which the trial is estimated to last. The plaintiffs say that, in these circumstances, this court should leave on foot the Mareva injunctions which were granted against the defendants and were continued by the judge until trial. But the judge continued the Mareva injunctions until trial on the footing that that trial was to take place within a month or so after the date of his order. Now that it is not to take place for several months thereafter, there is a material change in circumstances; and, as it seems to me, it would be wrong to deprive the defendants of the right to apply to the judge (if so advised) to discharge the Mareva injunctions. I say nothing about whether that application has or has not any, and if so, what chance of success. It should I think, be open to the defendants in these changed circumstances to apply again to the judge (if so advised) to hear, on its merits, their application for discharge of the Mareva injunctions. To this end, it will be necessary to set aside those parts of the judge's orders which adjourned to the trial the summons of the defendants to discharge the Mareva injunctions.

8. There is, I think, no point which I have left uncovered other than costs, upon which, of course, this court will hear argument after judgment.

9. To sum up, I would propose that the dates presently fixed for the trial, i.e. a trial commencing on 14th March 1994, be vacated and that in lieu thereof trial dates from the 10th October 1994 onwards be substituted. And I propose that those parts of the judge's orders which adjourned to the trial the hearing of the defendants' applications to discharge the Mareva injunctions should be set aside, leaving the defendants free to take whatever steps they may be advised to take in relation to those injunctions.

Penlington, J.A.:

10. I agree. While I can see the difficulties that this does cause to the plaintiffs, on balance I think the order proposed that the trial dates fixed for March be vacated and be refixed to the 10th October is the correct one.

Nazareth, J.A.:

11. I also agree. I am satisfied that the defendants must be given time to prepare and present their defence and that the hearing date of 14th March, which is only 10 days away, must be vacated. For the reasons given by my Lord Godfrey J.A., I agree that the orders he proposes should be made.