ETERNAL WEALTH HOLDINGS LTD AND OTHERS v. ORIENTAL SUPREME (HK) LTD AND ANOTHER

HCA 1605/2017

[2023] HKCFI 1890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1605 OF 2017

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BETWEEN

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D E C I S I O N

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1.  I will allow the 2^nd defendant’s application to vacate the trial dates in September and adjourn to a date after 1 April 2024.

2.  In arriving at this conclusion, I have followed the guidance set out by G Lam J in Arko Ship Leasing Ltd v Winsmart International Shipping Ltd [2013] 2 HKLRD 121 at para 14 and also by the Court of Appeal in Law Yin Pok Bosco v Chan Yee Shing HCMP 2256/2012, 2 November 2012 at paras 9 to 11.

3.  I consider that there are three broad matters which are material considerations in this application.

4.  The first is the importance of the 2^nd defendant’s testimony. He himself is the only witness for the defendants in this trial. This case is primarily a factual dispute relating to the terms of various commercial agreements. As I understand it, these agreements are partly reached orally and/or by conduct. It is therefore plain that the oral testimony of the 2^nd defendant would assume significant prominence in this action. It cannot be denied that his evidence would be material in support of his defence and counterclaim.

5.  The second matter is this. I am satisfied that there are sufficient materials before me to conclude on the balance of probabilities that the 2^nd defendant, who is now physically in the US, is prevented by his ongoing medical condition to attend the trial in Hong Kong or to give evidence whilst in the US via video link. To require him to testify with his current medical condition would be unfair as the evidence before me suggests that his condition would impair his ability to give evidence properly and effectively.

6.  Medical reports have been produced by the 2^nd defendant. The medical reports show the following. The 2^nd defendant has had a long-lasting issue with his right elbow after he underwent a surgery in 2011. Since then, he has required pain management over his right elbow on a continuing basis by regular injections. It would appear that since late 2022, the injections proved to be less effective. As a result, he opted for surgeries to relieve his pain.

7.  He has undergone four surgeries over the past six months or so. The dates of the surgeries are 28 November 2022, 16 December 2022, 3 April 2023, and, lastly, 19 June 2023. And according to the medical report, the last surgery is for the management of his ulnar nerve pain.

8.  There is one surgery which is scheduled to be in September or October this year which partly coincides with the trial dates. The date of the surgery is uncertain. I understand from the evidence that it is partly due to his diabetic condition and there is a need to wait for his blood sugar level to attain a certain optimal figure.

9.  And, equally significantly, all the time, according to the medical reports, he is on a pain medication regime using among others morphine and oxycodone. It is his own evidence that these would affect his ability to testify properly and accurately.

10.  I also note from the medical reports that the 2^nd defendant is a gentleman of 67 years old. The trial in September would coincide with his post-surgery period, that is a time when he is supposed to recover and when he is expected to be on heavy painkilling medication.

11.  Mr Simon Wong, who appears for the plaintiffs, has raised queries over the quality of the medical evidence adduced by the defendants. I accept that the medical evidence could have been prepared in a more comprehensive manner. However, if one takes a step back and looks at the objective facts revealed by the evidence, I am satisfied that there are sufficient materials before me to come to the conclusion which I have reached just now.

12.  The simple objective facts are that there are four surgeries over the past six months. One is coming up in September or October. The evidence is clear that the defendant is on a pain management regime in relation to his right elbow. Heavy painkilling medication is expected. The plaintiff has sought to characterise this situation as being “some pain” in his written submissions. I think that is an understatement, having regard to the medical reports produced by the 2^nd defendant.

13.  The third matter that I have taken into account is the prejudice and unfairness to the plaintiffs if the trial is adjourned.

14.  On this, I have made inquiries with the listing clerk and we now have an early date which is 6 May 2024. Both Mr Wong and Mr Toby Brown, counsel for the defendants, have confirmed that they would be available to have the trial during that time slot.

15.  Hence, we are talking about a period of delay of 7½ months. It is still a delay. But, on balance, the unfairness to the plaintiffs to have to wait another 7½ months would be outweighed by the unfairness to the 2^nd defendant to have to testify with his current medical condition.

16.  I am therefore, overall speaking, satisfied that the effect of his medical condition amounts to an exceptional circumstance which justifies the vacating of the trial dates in September.

17.  I therefore make the following orders.

18.  Earlier on at this hearing, the 2^nd defendant has given the following undertaking – he would file and serve a properly notarised affidavit within 14 days from today. Or, he is to provide an affidavit from the instructing solicitors as to why that undertaking cannot be complied with and an indication of when that can be done. That is to be supported by documentary evidence, if applicable.

19.  Based on that undertaking, I order that the trial scheduled on 21 September 2023 with seven days reserved be vacated and adjourned to 6 May 2024, also with seven days reserved. There be a pre-trial review hearing 8 to 12 weeks before the trial. Parties do attend the listing office to fix the date for the PTR hearing in consultation with counsel’s diary. So that would be my decision.

(Submissions re costs)

20.  Now, this is my order on costs:

(1) The plaintiffs do have costs of the application, to be taxed if not agreed;

(2) Costs of and occasioned by today’s hearing be in the cause; and

(3) Costs occasioned by the adjournment of the trial be to the plaintiffs.

21.  As to para (3) above, I have been informed by Mr Wong that his brief was in fact delivered to him in April this year, which is more than five months before the trial is scheduled to start. I wish to put on record here that whether that brief should form part of the costs occasioned by the adjournment of the trial would be a matter to be left to be decided by the taxing master.