HCMP1993/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1993 OF 2010

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D E C I S I O N

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1.  The originating summons is due to be heard before me today, but there are two applications to be dealt with first: (1), the defendant’s application for adjournment on medical grounds; (2), the plaintiff’s application for redirection of mail in the event an adjournment is granted.

Defendant’s application for adjournment

2.  Four days ago, the defendant sent a fax to the court seeking adjournment based on a medical certificate which states that he is mentally unfit to handle business and to discharge professional duties.  He was granted sick leave for 90 days until 6 February 2011.  The defendant did not propose any date for resumption of hearing of the originating summons.

3.  This letter from the defendant bore an address which was the same office address as his firm.  That letter was not copied to the plaintiff, despite the defendant should have known, as a solicitor, that this was a proper course to take.

4.  The letter was copied by the court to the plaintiff for comment.  Given the very limited time available to the plaintiff, the plaintiff has done an excellent job in coming up with documents to assist the court on the question of adjournment.  Three court documents are produced today:  (i), a writ in HCA1462/2001, wherein the defendant signed a statement of claim for his plaintiff client; (ii), a set of acknowledgment of service in that writ action, accompanied by a letter from Messrs Woo, Kwan, Lee & Lo; (iii), a judgment in HCA2451/2006 against the defendant himself dated 30 September 2010.  These are court documents, and despite not being produced through an affidavit, I am prepared to consider them.

5.  As rightly pointed out by Mr Tam, documents (i) and (iii) show that the defendant was discharging professional duties in September and May 2010 respectively.  He was solicitor on record for clients.  He was able to instruct counsel.  He appeared in court in HCA2451/2006, although he did not give evidence on his own behalf.

6.  One does not know, without disrespect, if Dr Cheung was aware of these professional activities of the defendant before he certified that the defendant has suffered instability since 2010, April, and was not mentally fit to handle business or to discharge professional duties.  The defendant might not have disclosed to the doctor the full picture.

7.  Regarding document (ii), the letter from Messrs Woo, Kwan, Lee & Lo, for the defendant in that case, shows that they were aware of the defendant’s suspension from practice, but were not aware of this intervention order.

8.  All of these three documents preceded the intervention order.  These documents are compelling objective evidence to show that the defendant might not be suffering from the mental incapability as he wants the court to believe.

9.  As pointed out by Mr Tam, for the present case, no acknowledgment of service has been filed.  The defendant did not even state what defence he might have and the time he needed to prepare it.

10.  On the other hand, I have considered that in fairness to the defendant, who has submitted what seems, on its face, to be a proper medical certificate, there should be an opportunity for him to answer the plaintiff’s rebuttal evidence.  The fact that the defendant has been granted sick leave does not necessarily mean he cannot travel to court and make representations.

11.  I am prepared to grant an adjournment. The adjournment will cause little prejudice to the plaintiff except in terms of costs.  There was an order which I have given on 13 October, and that would be sufficient protection to the plaintiff and is nearly as good as a final order in the present originating summons.

12.  I take this opportunity to warn the defendant that he should comply, and he may run the risk of contempt if he does not.

13.  I therefore grant an adjournment for two weeks to 1 December 2010 at 9.30 am on the following conditions:

(1) The plaintiff shall file and serve an affirmation within three days exhibiting the three documents relied on by them this morning.

(2) On 1 December 2010, the defendant do personally attend.

(3) On 1 December 2010, the defendant do tender Dr Cheung for cross‑examination to enable the court to decide whether or not further adjournment is required.

(4) The defendant should be prepared to show his broad grounds for opposition to the originating summons on 1 December 2010.

14.  I shall have these reasons for decision transcribed as a matter of urgency, and they shall be sent to the parties as soon as available.

15.  For the second application, redirection of mail, Mr Tam has shown good reasons for this ex parte application.  Usually it is not necessary for the Law Society to apply for such a redirection order, but as the evidence before me shows, the defendant himself has also applied for redirection of mail addressed to his firm at the office address.  The Post Office is taking legal advice from the Department of Justice.

16.  In  view of the intervention order, I see no prejudice in making an order for redirection to the plaintiff now. After all, it is an office address that we are talking about. In terms of priority, the plaintiff certainly has a better right than the defendant, who has ceased or been suspended from practice.

17.  As for the draft order, I would add after paragraph (1) the following:

“(2) A sealed copy of this order shall be served on the Postmaster‑General.

(3) The Postmaster-General is at liberty to intervene and apply for variation or discharge of this order on notice to the parties.”

(Discussion re costs)

(4) Costs in the cause.

18.  There will be an order in terms of the draft as amended.

19.  I also give leave to the plaintiff to serve the defendant additionally at the email address.

(Further discussion re costs)

20.  Costs of today be reserved to 1 December 2010.