MAN FONG HANG v. MAN PING NAM AND OTHERS

HCA 7935/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7935 OF 1998

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R U L I N G

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1. The trial of this action was scheduled to start today. However, one of the Defendants, Man Leung, is in England and he wrote to this court indicating that he could not fly back to Hong Kong for the purpose of trial on medical grounds. He asked for an adjournment. The matter is complicated by the fact that he was jointly represented together with the other two defendants by Messrs Christine M Koo & Ip ["the Firm"]. I was told by counsel for the Defendants, Mr Neoh SC, that the other two defendants did not want an adjournment. Obviously, there is a conflict amongst the defendants. Mr Neoh also informed the court that he had no instructions to apply for an adjournment on behalf of Man Leung.

2. Although a summons was taken out at a very late stage on 17 July 2003 by the Firm for an order under Order 67 rule 6, no order could have been granted at the hearing on 18 July 2003 for want of service of the application on Man Leung. Hence, up to this stage, the Firm is still solicitors on the record acting for Man Leung.

3. Today, before Mr Fung SC opened his case for the Plaintiff, I brought to parties' attention the letters sent by Man Leung to the court, including its enclosures. There were two letters, one dated 14 July 2003 and the other one dated 18 July 2003. I should mention that the fax copy of the letter of 14 July only came to my attention after the pre-trial review on 15 July 2003, hence I could not have brought that up at that stage. The fax copy of the letter of 18 July 2003 only came to my attention after the case has started this morning.

4. In these circumstance, counsel agreed there are two matters that this court has to deal with,

(a) the cease to act application by the Firm;

(b) the "application" for adjournment by Man Leung.

5. Technically, the second application is not before the court properly since the solicitors on the record acting for Man Leung did not make any application for adjournment on his behalf. However, I do not think it right for this court to ignore these letters from Man Leung in view of the cease to act application.

6. Counsel also agreed that the two matters are related. The outcome of the cease to act application could have an impact on the application for adjournment. Mr Neoh submitted that the court should deal with the cease to act application first. Mr Fung accepted that logically that should be the approach adopted in the present case.

7. Mr Fung applied to be supplied with the papers in connection with the cease to act application and for leave to be heard in that application. His stance was that insofar as the cease to act application would have an impact on the application for adjournment, the Plaintiff should be allowed to make submissions in connection thereto.

8. Mr Neoh accepted that this court does have the power to make such orders (see Fairview Park Property Management Ltd v Sun Wai Chun [1999] 4 HKC 42). However, he submitted that these orders should not be made unless there are special circumstances justifying the same. Normally, an application for an order of cease to act should be regarded as a private matter between a litigant and his solicitors and his adversary should not be involved. In this connection, Mr Neoh's stance is supported by the English Court of Appeal's decision in Re Creehouse Ltd [1983] 1 WLR 77. This is further reinforced by O.67 r.6A in Hong Kong which prohibited inspection of the affidavit in support of such application by the other party without leave of the court.

9. In my judgment, it is necessary for the due administration of justice to recognize that application for cease to act should be made promptly to avoid disruption to trial dates. A late application might entail a risk that a litigant lacks reasonable time to arrange alternative legal representation or to prepare to act in person. In this sort of situation, the court will be faced with a dilemma. The court may feel necessary to explore the option of adjourning the trial to enable the litigant to seek proper legal representation. In that case, the other party to the action could be affected by the outcome of a late application under O.67 r.6. Mr Fung rightly reminded this court that this is not the sort of situation facing the English Court of Appeal in Re Creehouse.

10. In the present case, Man Leung did not terminate his instructions to the Firm. To the contrary, from the correspondence he sent to the court together with its enclosures, it can be seen that he had instructed the Firm to apply for an adjournment on 1 July 2003. Yet no application has been made despite pre-trial reviews being held on 7, 9 and 15 July 2003. In those circumstances, if the Plaintiff has to meet an application for adjournment on the first day of trial, I think Mr Fung can justifiably ask for an explanation as to why no application has been made earlier. The material filed in support of the O.67 r.6 application may supply the answer.

11. Further, Man Leung had written to the court and disclosed in his enclosures his communication with his solicitors on the question of adjournment. To that extent he waived whatever privilege that could arguably be attaching to the solicitor and client correspondence on this subject. As I see it, the only purpose of Man Leung disclosing his letters to his solicitors on the request for adjournment was to show this court that he had made such a request on the first opportunity, hence he was not at fault regarding delay in making the application after 1 July 2003. Once this is put into issue, the privilege attached to the other correspondence, viz. those from the Firm to Man Leung, should be waived impliedly. I do not think the affirmation filed in support of the O.67 application disclosed other confidential material.

12. Even if I were wrong in these analyses, Nazareth VP held in Fairview Park that the affidavit filed under O.67 r.6 were not privileged once they were put before the court. Mr Neoh did not accept that to be a correct statement of the law. I am however bound by that decision.

13. As with the exercise of other discretion, how I should exercise my discretion on these requests by Mr Fung must be a balancing exercise. I agree that there must be special circumstances to justify an order for disclosure and leave being given to the other party to participate in the hearing of an application under O.67 r.6. On the facts of the present case, given the circumstances under which Man Leung made his "application" for adjournment and the material he relied upon, and the belated stage at which the Firm made the application under O.67 r.6, and having regard to the potential prejudice that might cause to Man Leung and the potential impact of this application on the trial dates, I am of the view that it is a special case where the Plaintiff should be allowed to have access to the affirmation filed in support of the O.67 application. However, just in case I have missed anything in the affirmation which disclosed confidential material over and above those relating to the question of adjournment, that could be dealt with by way of appropriate editing. I shall hear Mr Neoh further to see whether there should be any editing.

14. Further, given the impacts that the O.67 application might have on the application for adjournment, I shall grant leave to the Plaintiff to address the court in that application. In the light of this, despite counsel's submissions on the sequence of hearing, I am of the view that the two applications should be heard together.