CHAN WING KIN AND ANOTHER v. CHU HON CHEONG

CACV 28/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 28 OF 2000

(ON APPEAL FROM HCA 3245/1997)

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J U D G M E N T

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Hon Rogers JA :

1. This is an appeal from a decision of deputy judge To given on 20 January this year whereby he refused to vacate the dates for the hearing of a preliminary issue. The matter arises in a fairly long standing case. The action was commenced as long ago as March 1997. The claim was for repayment of a loan of $1.5 m.

2. The initial defence filed was that there was an agreement to repay that loan in instalments; it was said that the first instalments were paid. The action had a fairly checkered history but it is unnecessary to go into that. At one stage, judgment was entered against the defendant. For some reason, in April 1998, that judgment was set aside by consent and the defendant was given leave to defend and file a counterclaim.

3. In September of last year, a consent summons was taken out seeking that there should be a trial of a preliminary issue. That preliminary issue was whether the loan was made to the defendant by the 1st named plaintiff alone or whether the loan was made by the 1st named and the 2nd named plaintiffs together. If the court were to determine that the loan had been made to the defendant by the 1st named and the 2nd named plaintiffs together, judgment would be entered for the plaintiffs for payment of the balance of the loan with interest. If the court should determine that the loan was made to the defendant by the 1st named plaintiff alone, leave would be given for the plaintiffs to file a reply and defence to counterclaim within 14 days of the determination.

4. An order was made pursuant to that consent summons on 24 September and on 30 September, dates were fixed for hearing that preliminary issue. Those dates are 10th and 11th of February.

5. In November of last year, there was introduced into the Canadian legislature, draft legislation which, it is thought, might make it more difficult for the defendant to secure Canadian citizenship, although it appears he has established his right of permanent residence in Canada.

6. It appears that there was some lack of communication between the lawyers acting for the defendant in this action in Hong Kong and the lawyers acting for the defendant in his application for citizenship in Canada. As a result, the lawyers in Canada arranged that the defendant should submit his application for Canadian citizenship on, it seems, 8 February, although there is reference in some of the correspondence to 9 February. It was said that there was some urgency in the matter in that the defendant should secure his rights as to citizenship as early as possible, preferably before the new legislation came in, because it appeared that the new legislation might require residency, in fact, as opposed to deemed residency.

7. When this came to the notice of the defendant last month, he sought an adjournment of the hearing of the preliminary issue. The plaintiffs objected to that. Therefore, application was made to the deputy judge to adjourn the hearing. That application was supported by affidavit but the kernel of the evidence in respect of it is contained in letters exhibited to the affidavits, not in the body of the affidavits. Those letters were written by the Canadian lawyer acting for the defendant, explaining why the date of 8 February should be adhered to.

8. On my reading of those letters what is to take place on 8 February is, as I have said, the submission of the application for Canadian citizenship. That, the lawyer says, will take a few days for him to prepare. It appears from the letters of 19 January and 23 January from the Canadian lawyer that it is really the Canadian lawyer's convenience that the date of 8 February has been picked.

9. In the letter of 19 January, he says :-

"The writer will be travelling to the United States until Saturday, February 5, 2000 and commencing the week of February 14, the writer will be preparing for Canadian Immigration and Refugee Board - Appeal Division Hearings, scheduled for the 3rd and 4th weeks of February, 2000. After the conclusion of the hearings, the writer will be travelling to Hong Kong and China, and will not be able to assist Mr. Chu until the end of March, 2000. Any delay in submitting Mr. Chu's application may result in him losing the right to apply for Canadian Citizenship at a future date as changes to the Canadian Citizenship Act may take effect very shortly.

And then in the letter of 23 January, he says :-

"It is unfortunate that we were not aware of your required court attendance in Hong Kong when the undersigned fixed the dates for your application of Canadian Citizenship. However our Immigration Hearings and trips were scheduled several months ago and cannot be changed to accommodate you at this late stage. As the undersigned have been following up on your file since you immigrated to Canada, the undersigned will only require 3-4 days to complete your Application for Canadian Citizenship. However, the other solicitors at our firm are not familiar with your file, nor will any other solicitors be familiar with your circumstances. The time required for them to review your file with you and to prepare your Application for Canadian Citizenship will be fairly lengthy. Further, due to the forthcoming changes in the immigration laws, there is a great surge in the demand for immigration lawyers and we are not in a position to recommend any suitable lawyer to replace the undersigned."

And then the letter goes on to indicate that :-

"... the dates we have fixed for your application is causing you much difficulties for which we deeply apologize but we must re-iterate our previous advice to you that if you fail to apply as we have scheduled for you, you may forever lose your right to do so under your present residency circumstances."

10. In those circumstances, what the lawyer has not said is that the dates for the defendant's application are immutable. What he has said is that his own convenience makes him unavailable until March and, reading between the lines, he is apprehensive that the new legislation may become effective before the end of March.

11. I, for my part, find it extremely difficult to accept that this one Canadian immigration lawyer is the only person capable of handling this case on behalf of the defendant. I am totally unconvinced as to that. It is a fact in this court that the unavailability of lawyers for the presentation of a case is no ground for having the case adjourned, for there are plenty of other lawyers in Hong Kong. I presume the same must be so in Canada. The deputy judge below, in my view, correctly summarised the situation when he said :-

"... I refuse the application ..., in effect, the defendant is not asking this court to give precedence to the Canadian court but to give precedence to the Canadian lawyer."

12. In my view, the deputy judge summed the matter up extremely well in those few words. I consider that there is no alternative but to dismiss this appeal.

Ribeiro JA :

13. I entirely agree and have nothing to add.