SCHINDLER LIFTS (HONG KONG) LTD v. LEE YING CHOI AND OTHERS

HCSA21/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

SMALL CLAIMS TRIBUNAL APPEAL NO. 21 OF 2007

(ON APPEAL FROM SCTC 6518 OF 2006)

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J U D G M E N T

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1. The claimant (appellant) applied today to withdraw the appeal against four defendants pursuant to Order 21, rule 6 of the Rules of High Court with no order as to costs.  Madam Lin the 2^nd defendant is the only one appearing for the defence (respondents’) side.  According to a letter written by her, which was shown to me earlier this morning, she agreed to pay $25,000 instead of the sum claimed in this case in the amount of $41,004 and upon that payment the appellant agreed to withdraw the appeal.  Accordingly I order in terms of the summons.  

2. For a change I use English in this ruling in order to clarify certain matters since Messrs Deacons, solicitors for the appellant had been using English correspondence and I also gathered from the papers before me that the case was handled by a partner and assistant who are more conversant in English.  Apparently they do not read Chinese at all. 

3. The first thing I want to clarify is apparently it had been said by them that they were probably misled by my direction at the early stage that I have directed that “the appellant was able to appeal through a Cantonese speaking solicitor from their firm”.  I clearly recall that I have not made such a direction.  I have requested Mr Shaw appearing for the appellant that it would be more convenient for everyone if the case could be handled by a Chinese solicitor of the firm.  In making that request I am conscious of the High Court Civil Procedure (Use of Language Rules) at p. 1155 of Hong Kong Civil Procedure 2008 Vol. 2.  I understand that it has been an invariable practice in the Court of Appeal that if a case was conducted in Chinese, the court will make available three bilingual judges to hear the appeal and litigants would be expected to appear by a Chinese speaking counsel.  The appeal will be conducted in Cantonese.  I am following this practice. 

4. I presume all solicitors should know that only counsel has the right of audience in the High Court.  It is true that I did not say specifically when I suggested to Mr Shaw that the case should be handled by a Chinese speaking solicitor of this firm, who should in turn instruct a Chinese speaking counsel.  That was because of the aforesaid presumption I have made.  

5. Secondly, I would also like to point out two matters arising from the correspondence.  Last time the appellant’s solicitor took out a summons for further direction pursuant to the court’s inherent jurisdiction without stating in the margin as required by the rules as to under what order of the Rules of High Court this summons was taken.  It was not stated what direction they are seeking from the court.  The summons was issued against the 3^rd and the 4^th defendants only.  Upon my instructions, my clerk inquired by telephone from the appellant’s solicitors as to :

(1) what further directions they are seeking from this court? 

(2) Why the summons was in English after the direction that the appeal should be handled in Chinese? 

6. Court received the letter dated 26 June 2008 from the appellant’s solicitors and they said :

“We refer to the summons for directions issued by us on 23 June.  You have asked us to specify what directions the appellant intends to seek in the directions hearing on 30 June.

There are four respondents to the appeal.  Two of those four respondents wish to resolve the appeal.  The further directions we seek are as to the continuation of the appeal against the other two respondents.” 

7. Both from this letter and from the telephone conversation between my clerk and the one who handled the matter in the appellant’s firm suggested that their direction was in respect of the fact that the 3^rd and 4^th respondents had not been attending any of the hearings in the appeal and in fact did not appear at all.  Thus they wrote back a letter on the same day on urgent basis since that summons will be heard on Monday 30 June to the effect that the summons was in respect of the other two respondents, i.e. the 3^rd and 4^th respondents in respect of the further continuation of appeal against them after the 1^st and 2^nd respondents have settled the appeal with the appellant.

8. According to the rules and practice of the High Court, there are in fact several avenues opened to the appellant’s solicitors.  It has been explained in my clerk’s letter that they can continue on with the appeal in the usual way until the end of the appeal.  At the hearing I have explained to Mr Kwan of solicitor who appeared for the appellant in the hearing in chambers for that summons that they could alternatively apply to adjourn the appeal sine die with liberty to restore.  Further and, alternatively after they have settled with the 1^st and 2^nd respondents and if they consider that the appeal is over for all intents and purposes, they could even withdraw the appeal against the other 2 respondents by obtaining leave from this court.  However I emphasise at the hearing that all these avenues should be clear to solicitors practising in Hong Kong if they have done a little bit of research on the procedural difficulties facing them. 

9. This morning I read the Chinese letter from Madam Lin.  It is very clear that the offer of $25,000 in response to the appellant’s solicitors without prejudice letter was intended to be a full and final settlement of the appeal.  Messrs Deacons’ without prejudice letter was dated 13 November 2007 and Madam Lin’s letter in reply in accepting the terms was dated 10 June 2008.  I emphasise at the last hearing that it is for the solicitors to prepare the case and it is not proper to seek advice from the bench when the legal position is very clear according to practice and procedure.  When the appellant’s solicitors stated in their letter dated 27 June 2008 that :

“… It is not in the appellant’s interest to incur costs for counsel for the hearing of the appeal on 8 July simply to find that the two other respondents do not appear, …”

it is exactly because of such a reason it is open to the appellant to apply for withdrawal of the appeal or have the case adjourned sine die against the 3^rd and 4^th respondents.

10. Further, from the letters shown to me this morning, it is quite clear the payment of $25,000 was paid in respect of all the owners of the building and they were paid with the consent of all the owners of the building including the 3^rd and 4^th respondents.  That being the case there is no difficulty to the appellant’s solicitors if they have done a little bit of research in the case and thereafter apply to withdraw the appeal with no order as to costs. 

11. The hearing on 8 July tomorrow can be vacated and they can save up counsel’s fees thereof.  In sum, I consider this case has not been properly handled and there are a number of points which can be better handled in the interest of the appellant itself.  I hope this matter is brought to the attention of those who are responsible in this case and such thing would not be repeated in future.