FAIRWING INVESTMENT LTD v. CHINA AND CANTON (PROPERTIES) CO LTD AND ANOTHER

HCA 2137/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2137 OF 2004

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D E C I S I O N

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1. This is an application to vacate the trial dates fixed to commence on 22 June 2009. 

2. The application is made on the basis of the ill health of the defendants’ main witness.  Mr. Tang has impressed upon me the importance of Mr. Yuen Kam Ming as a factual witness.  He is, I am told, the only witness on behalf of the defendants who is able to give evidence about the full circumstances leading to the granting of a licence in this case.  I have no doubt that he will be an important witness for the defendants.  Unfortunately, he recently has had a recurrence of colon cancer resulting in surgery and full-thickness abdominal wall resection.  There is no doubt that his condition is serious as shown in the medical reports handed up to the court.

3. I am told by Mr Tang who has visited Mr Yuen that not only is Mr Yuen unable to give evidence in court at this time, he is also unable to assist Mr Tang in the proper preparation of the defence case.  In the circumstances he asks for an adjournment.

4. I observe that the defendants ask for an adjournment notwithstanding that there is presently an injunction against the defendants which was granted in 2004.  Despite an order for a speedy trial made by Reyes J in November 2004, the conduct of the action has been anything other than speedy.  I am told that in October last year an application was made by the defendants to strike out the action for want of prosecution.  That application was, however, dismissed by Rogers VP sitting as a judge of the High Court. 

5. I am satisfied that the application is not made by the defendants with a view to delaying the trial of this matter.  It is made as Mr Tang says he is handicapped in the preparation of the trial for the defence. 

6. In the circumstances, in the interests of justice I do think that it is proper to grant the adjournment and vacate the trial dates fixed to commence on 22 June 2009. 

7. I do not think, however, that the trial should be put off for too long.  Parties should realize that there has been an order made for a speedy trial of this action.  The court should ensure that that order is observed. 

8. What I propose doing is to vacate the trial dates fixed to commence on 22 June 2009.  I direct that new dates be fixed in consultation with counsel’s diaries with early hearing dates but that the trial is not to resume before 16 September 2009.  So the earliest time that the trial can resume is three months from today.  But that should not prevent dates from being fixed as soon as possible and dates, I direct, are not to be fixed without reference to the Listing Judge.  So dates have to be fixed with reference to the Listing Judge. 

9. As to the estimated length of trial I have heard counsel give an estimate of seven days as being an optimistic estimate.  I think it may be safer to say that there should be hearing dates estimated for 8 days, so the estimated length of trial is 8 days.  Because I have said that early dates be fixed the trial dates should be fixed before any judge who may be available rather than a particular judge whose diary may be quite busy.  This will be a matter for the Listing Judge to deal with when the matter is brought to the Listing Judge’s attention for the fixing of trial dates.  

10. I would also direct that there be a pre-trial review six weeks before the resumed trial dates. 

11. As the parties have already started with a mediation meeting, I would also direct that mediation do proceed in the meantime.  I have been told by counsel that at the first meeting of mediation certain progress has been made and I would direct that mediation do continue with a view to resolving these matters. 

12. As to costs, as I indicated, the plaintiff is certainly not to blame for this state of affairs.  The defendants have been given an indulgence by the adjournment and it is only right and proper that the defendants should pay the costs for today’s hearing as well as the costs for the hearing on the last occasion on 29 May 2009. 

[After hearing submissions]

13. I order that the costs of and occasioned by the adjournment including the costs of to-day’s hearing and of the hearing on 29 May 2009 be costs to the plaintiff to be paid by the defendants, such costs to be taxed and paid forthwith.