LAM HON KEUNG KEITH v. LAM CHI TAT ANTHONY AND OTHERS

HCA 725, 726, 1230, 2426-2428 and 2550/2015
[2021] HKCFI 1282

(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 725 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 726 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1230 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2426 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2427 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2428 OF 2015

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2550 OF 2015

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(Heard Together)

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D E C I S I O N

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1.  This is the second Pre-Trial Review of the Actions.

2.  By Summonses dated 1 April 2021, Mr Lam Chi-wai Adrian and Ms Lam Kit‑lan Cynthia (collectively the “Executors”) in their capacities as executors under a Will of the plaintiff, applied to adjourn the trial scheduled to commence on 7 June 2021, and to re-fix the same on an expedited basis to commence on a date not before 1 September 2021 (the “Adjournment Application”).

3.  The plaintiff in these Actions, Mr Lam Hon-keung Keith had passed away unexpectedly on 1 January 2021. 

4.  The Executors advanced the Adjournment Applications on, inter alia, the ground that they require time to make inquiries and investigations to ascertain additional evidence which may be adduced in substitution of the plaintiff’s witness statements.  It is estimated that they need 8 to 10 weeks to take out applications to adduce additional evidence. 

5.  The Executors pointed out that the plaintiff has filed various witness statements in these Actions and was the primary witness in support of the plaintiff’s case in the Actions. Following his death, the Executors would need to make inquiries and investigate whether there is other evidence which may be adduced in substitution.  This may broadly include:

(1)  supplemental witness statements from existing witness(es);

(2)  witness statements of additional witness(es); and

(3)  additional documentary evidence such as the plaintiff’s prior sworn statements/declarations. 

6.  At the hearing today, counsel for the Executors has informed the court that approach has been made to the former 2^nd wife and the eldest daughter of Mr Lam Hon-keung Keith, and they may be willing to give evidence in support of the plaintiff’s case. 

7.  The Executors further pointed out in their Skeleton Submissions that what is at stake in these Actions is very substantial in particular for the plaintiff’s estate.  The estimated value of the assets claimed in these Actions is around HK$400 million in total.  Other than the assets claimed in the Actions, the plaintiff’s estate does not have much value.  It is therefore vital that the Executors be afforded sufficient time and opportunity to protect the plaintiff’s estate and ensure adequate preparation and representation of the plaintiff’s case. 

8.  The defendants fairly accept that in the present case, the plaintiff, no doubt an important witness for his case in the Actions, has died and will not be available to give evidence. 

9.  The defendants further accepted that the principles laid down by Godfrey Lam J in Arko Ship Leasing Limited v Winsmart International Shipping Limited [2013] 2 HKLRD 121, concern the situation where an adjournment is sought arising from the unavailability of a witness for reasons other than the death of the witness himself/herself.  The defendants accept that with appropriate modifications these considerations can be applied in a case where the witness has died. 

10.  At paragraph 31 of Arko, Godfrey Lam J had this to say:

“31. I am satisfied that exceptional circumstances exist here, such as to engage my discretion. Ultimately, it seems to me that this involves a balancing exercise, a choice between unattractive options and a balance between the underlying objectives. To allow the application would result in the vacating of trial dates just a month away when these dates were fixed many months ago. It would require the defendants (who are also the plaintiffs by counterclaim) to wait longer for the trial and therefore for a final outcome. To refuse the application would however be to deny the plaintiffs the chance of having the relevant witnesses, in particular, the master of the vessel, testify at the trial about a main issue which is the cause of the sinking of the vessel. I recognise that one of the underlying objectives of our procedural rules is to ensure that a case is dealt with as expeditiously as reasonably practicable (see Order 1A, rule 1(b)), but rule 1(d) requires the court to ensure fairness between the parties and rule 2(2) states that the court must always recognise that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.”

11.  Likewise, I am satisfied that the untimely death of the plaintiff constitutes “exceptional circumstances” such as to engage my discretion to adjourn the trial, and the trial should be adjourned to give the Executors a reasonable opportunity to deal with the difficulties arising from the death of the plaintiff. 

12.  In coming to this view, I have taken into account that the defendants have not put forward any specific evidence of prejudice if the trial is adjourned. 

13.  In this regard, what Godfrey Lam J said in Arko at paragraph 29 is instructive:

“29. As regards the disadvantages to the defendants in this case, I do not underestimate the prejudice to the defendants in simply having to wait another substantial period of time for the trial. The defendants also say that memories will fade and their witnesses may no longer be willing to testify with the lapse of time. I note however that there are no specific factual circumstances put forward to suggest that their witnesses may become unwilling or unavailable.”

14.  Likewise, in the present case there is no suggestion that the defendant’s witnesses may become unwilling or unavailable if the trial is adjourned.  In the end, I consider that at this stage, the balance comes down in favour of an adjournment. 

(Discussion re costs)

15.  The trial has been vacated on the application of the plaintiff.  The plaintiff has been given an indulgence.  The defendants are not at fault in any way.  It is only right and proper that the plaintiff should pay the costs of the Adjournment Application and the costs thrown away by the adjournment. 

16.  Accordingly, I order that the plaintiff shall pay the defendants’ costs of and occasioned by the Adjournment Application (including costs of today’s hearing), and costs of and occasioned and thrown away by vacating and adjourning the trial, such costs to be taxed on the party and party basis if not agreed and paid forthwith.