NG YIN NEI v. LEE CHICK CHOI

DCCJ 563/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 563 OF 2010

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BETWEEN

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RULING

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1.  There is a long history to this matter. There was first an application for summary judgment, which was allowed by Master Pang on 15 June 2010. There was then an appeal that was dismissed by Deputy Judge Joseph Kwan. He however ordered a stay of execution pending the hearing of the striking-out application of the counterclaim.

2.  On the 23 June 2010, Master Pang adjourned the striking-out application to be heard before him on 13 October, this year.  The defendant was not happy with that decision and appealed against Master Pang’s order.

3.  The matter was heard by Deputy Judge Joseph Kwan on 5 July 2010, and the appeal was dismissed.

4.  Thereafter, on 9 July 2010, the defendant took out another application for the matter to be heard by a judge rather than a master.  That application was dismissed by Master Pang.  This is the hearing of the defendant’s appeal against that order. 

5.  Before me, the defendant made a number of points.  He argued that if the matter is to be determined by a judge as opposed to a master, there will be savings in terms of costs and time.  In the defendant’s view, he believed that the hearing will definitely not last for a whole day.  He believed it can be determined relatively quickly in an hour or so, and if  we are to adjourn the matter to a judge with one or two hours reserved, he may be able to have a quicker hearing date and also a shorter hearing,

6.  I am afraid that I am unable to accept this suggestion.  The length of the hearing was assessed by Master Pang after hearing the parties and the defendant confirmed to me that the same point was made to the master.  The learned master had obviously considered the materials involved in the striking-out application and came to an assessment that one day is an appropriate length of the hearing.

7.  Further, even if the matter will not last one day and it is relatively simple, as suggested by the defendant, the matter can be dealt with by the learned master on the day within an hour or so.  So in that regard, the savings (if any) will not be substantial.

8.  In addition, if I am to adjourn the matter to a judge instead of a master now, there is no guarantee that the matter will be heard before 13 October 2010.  It all depends on the availability of the parties and whether you are able to obtain a date before that.  We are already in mid-August.

9.  So after having heard the defendant’s point, I am not convinced that  there are good reasons to disturb the master’s decision in dismissing the summons to transfer the matter to a judge.

10.  Now, an additional point has been raised this afternoon, and that is the matter is unsuitable to be determined by a striking-out application.  The defendant said there are matters that are fact-sensitive and witnesses will have to be called.

11.  As explained by me to the defendant, this is a point that the defendant may be able to take at the striking-out application, but I do not see any relevance in determining the matter before me today.

12.  There is also the complaint that the learned master is biased and unfair towards the defendant.  The same point was made before Deputy Judge Joseph Kwan when he dismissed the appeal brought by the defendant against Master Pang’s order refusing to transfer the matter to a judge.  There is simply no basis to support the suggestion.

13.  I agreed with the observation of the learned deputy judge, I do not believe that is a valid reason for transferring the matter from a master to a judge.

14.  I also observed that, in essence, we are dealing today with a matter that was already determined by Deputy Judge Joseph Kwan.  He had already disallowed the application to transfer the matter from a master to a judge.  You have put forward additional reasons, you have filed an additional affidavit, but that does not mean that this application should be entertained by this court.

15.  For those reasons, the appeal before me is dismissed. 

(Discussion re costs)

16.  The costs of and occasioned by this application be paid by the defendant to the plaintiff. I assess the costs at $8,500 to be payable forthwith.