SHAGANG SHIPPING CO LTD v. SHUM MAN FU also known as SHEN WENFU AND ANOTHER

HCCL 4/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 4 OF 2013

(Transferred from High Court Action No 628 of 2012)

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D E C I S I O N

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1.  This application by the 1^st defendant to adjourn the trial which is to take place on 31 July 2014 with 10 days reserved is, on any account, a very late one. Further, it is made contrary to the direction of this court given on 26 September 2013 that any interlocutory application be taken out on or before 11 October 2013.

2.  It is said that the 1^st defendant is under investigation in the Mainland over a criminal matter and that his bail conditions do not allow him to attend the trial in Hong Kong.

3.  I have this morning a 12-page skeleton submissions of the plaintiff as well as an affirmation filed this morning in opposition to the adjournment application.  Mr Pao, who appears for the 1^st defendant, asks that these matters be adjourned so that reply evidence can be filed before the determination of this application.

4.  To begin with, an application of this nature must be properly supported with the deponent of the supporting affidavit condescending to the relevant details of his evidence.

5.  I accept that it is normally very difficult for a tribunal to determine an application before the applicant has filed his reply evidence and thus the court’s hands are often tied in circumstances of this sort.  However, I am not satisfied that the evidence filed by the 1^st defendant has properly demonstrated that he will be unable to even give his evidence by way of video link.

6.  The evidence filed in this regard is quite unsatisfactory.  What is relied upon is an oral statement said to have been made to the 1^st defendant when he was granted bail by the head of the Commercial Crime Department of the Public Security Bureau of Haikou City.  This statement suggests that the 1^st defendant can have no communication with anyone unless the same is not related to the Shagang Group.  Even taking that statement at the highest, it must in my view be read with common sense.  I am unable to see why the giving of evidence in a set of legal proceedings in a well-recognized jurisdiction can be an infringement of that bail condition.  Mr Pao has not been able to demonstrate to me why that can be so.

7.  I am not attracted by the suggestion that further evidence be filed to elaborate on this particular bail condition.  The 1^st defendant cannot be allowed to take advantage of the deficiency of his own evidence to delay yet further the determination of this very late application.

8.  I see no reason to allow this application to be turned into a satellite litigation, which I have little doubt will happen if further evidence is to be filed.  I see no reason to allow the determination of this matter be further delayed if I am not satisfied that the material currently before this court sufficiently justifies the application.

9.  For these reasons, this application is dismissed.