LEE SAN v. THE ESTATE OF LEE (LI) MAN FAT also known as LI SHIU KAU, deceased AND OTHERS

HCA4245/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4245 OF 2001

______________________

______________________

______________________

JUDGMENT

______________________

1. This is an application by the plaintiff for an order that the order made on 8 March 2005 which was made in his absence be set aside namely, that the action against the 3^rd to 6^th defendants be dismissed for want of prosecution and that the costs of the action including the costs of the application be paid by the plaintiff to the 3^rd to 6^th defendants. 

2. On the evidence before me it is plain that the plaintiff did not receive the summons to strike out which was heard on 8 March 2005.  The reason for this is that the application was served on the plaintiff at what was his address in the USA namely, at 116, Lakeshore Drive, Savannah, GA 31419.  However, unknown to the defendants, the plaintiff was not at that address at the relevant time.  As the evidence shows, he had been arrested on 1 August 2003 and he had been charged with the murder of his wife and held in custody awaiting trial.  He was in custody either in jail or in a hospital for the whole of the period from 1 August 2003 until his release on 23 December 2005 when he was then acquitted of all charges against him by a jury.  That being so, Ms Ma, for the 3^rd to 6^th defendants, properly does not oppose the plaintiff’s application by the summons dated 16 July 2004 save for the question of costs. 

3. It is common ground that there are three sets of costs that have been incurred :

(1)	Costs of and occasioned by the striking out summons dated 24 November 2004, including the hearing on 8 March 2005;
(2)	Costs of and occasioned by taxation and the application for a charging order nisi; and
(3)	Costs of and occasioned by plaintiff’s summons dated 16 July 2007 for setting aside the judgment dated 8 March 2005, including the costs of today’s hearing.

4. Ms Ma asks for an order that all three sets of costs should be paid by the plaintiff, such costs to be taxed and paid forthwith. 

5. Mr Lam, for the plaintiff, is content with an order that all those costs be costs in the cause. 

6. It seems to me that the first and third sets of costs must be taken together because it seems to me that the proceedings that proceeded in the absence of the plaintiff are liable to be set aside as he was never given notice of those proceedings.  And to set aside the order made on 8 March 2005 it was necessary for the plaintiff to take out this application. 

7. No fault is attributed to the 3^rd to 6^th defendants for obtaining an order striking out the action for want of prosecution.  They were unaware of the fact that the notices that had been served on the American address did not reach the plaintiff as he had been held in custody.

8. Nevertheless, it seems to me that it is only fair that the first and third set of costs should be costs in the cause.  No fault can be attributed to the plaintiff at all. 

9. As regards the second set of costs, it seems to me also that these costs should also be costs in the cause. 

10. Ms Ma has drawn my attention to correspondence which was sent to the plaintiff from November 2006 onwards and she complains that the plaintiff made no enquiry about the progress of the action and took no steps to instruct solicitors to represent him in these proceedings until much later in mid June when he instructed Messrs Wong, Hui & Co. to take out this application.

11. I have to bear in mind that the plaintiff is an aged man.  He is almost 80 years old.  He has filed evidence to the effect that he did not understand the correspondence that was sent to him by Messrs Wong, Hui & Co. in November 2006. 

12. His evidence, which is unchallenged, is that he was not informed about the order striking out the action for want of prosecution until much later when he instructed Messrs Wong, Hui & Co. to act for him in March 2007 to write a letter of settlement which was subsequently sent on 26 April 2007.

13. It is also clear from his evidence that even at a family gathering at the end of October 2006 when he met the 5^th defendant he was not even told about the order striking out the action which was made on 8 March 2005.

14. On his evidence he had mistaken the request of his solicitors to provide information to them.  I accept that this is not the fault of the defendants.

15. It is clear to me that he did appear before Registrar Chan on 14 May 2007 which was a callover hearing on the charging order to show cause why it should not be made absolute.  This was in response to a letter that he had received when he came back to Hong Kong in March from the USA.  His evidence is that when he returned to the Sham Shui Po residence where he was living in Hong Kong on 13 May 2007 he found a bundle of unclaimed letters on top of letter boxes in the building and he found a brown envelope with his name written on it with a postal date of 10 May 2007.  Having opened the envelope he found the letter dated 5 May 2007 from the defendants’ solicitors asking him to attend court on 14 May 2007.  Hence his attendance before Registrar Chan on 14 May 2007.  Since that time he has been actively pursuing the matter resulting in the taking out of the application on 16 July 2007. 

16. In the circumstances although no fault is attributed to the defendants for pursuing the matter in the manner that they did I do not think it would be fair to penalise the plaintiff with costs even in respect of the second set of costs at this stage.  As a matter of my discretion, it seems to me that the fairest order would be to make an order that all sets of costs be costs in the cause.