HILLHEAD LTD. v. SEAN ERIC MCLEAN HOTUNG AND OTHERS

HCMP 5250/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5250 OF 2002

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D E C I S I O N

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1. I have before me a Beddoe application taken out by the trustee, Hillhead Limited, against various defendants, some of whom are beneficiaries in the trust. The originating summons for the application was issued on 18 December 2002 by the trustee. This was the day after I had adjourned proceedings in HCMP No. 4511 of 2002 ("HCMP 4511").

2. In the latter proceedings, the trustee is the defendant and the application made to me on 17 December 2002 was that I should adjourn the hearing of HCMP 4511 to another date to enable the trustee to take out a Beddoe application seeking a direction from the Court whether to contest the proceedings in HCMP 4511. I granted an adjournment on that basis.

3. The originating summons in the Beddoe application came before Waung J on 6 January 2003. At that hearing, Waung J adjourned the application to me on 15 January 2003, that is today, to be heard at the same time as the adjourned hearing of HCMP 4511.

4. It is the usual practice in a Beddoe application that the judge who is concerned with the substantive litigation or the proposed substantive litigation should not be involved in any way in the Beddoe application, because it would be inappropriate to reveal to the judge eventually seized with the matter the views of the trustee on the strength and weakness of his case and what legal advice he has received.

5. As in any Beddoe application, the beneficiaries to the trust are made parties to that application. As I have indicated to counsel at the outset, the fact that there are common parties in the Beddoe application and in the substantive litigation does not mean that the Court should be told or kept informed of the Beddoe application, the merits and legal advice that the trustee might have received on the substantive litigation.

6. I see no reason why the present proceedings should warrant a departure from the normal practice. I understand from Mr Anderson Chow who appeared for the trustee that the trustee's stance is that as the judge seized with HCMP 4511, I should not be hearing the Beddoe application. The same stance is taken by Mr Herbert Tsoi who appears for the 2nd defendant, Mr Eric Edward Hotung, in the Beddoe application.

7. For the reasons given above, I do not think I should be concerned in any way with HCMP No. 5250 of 2002 and the Beddoe application should be heard by another judge. I should say for the purpose of record that I have refrained from reading the papers in these proceedings other than the originating summons, the amended originating summons and the order made by Waung J on 6 January 2003. I do not consider myself to have been conflicted out of dealing with HCMP 4511.

8. I order that the application in these proceedings is to be adjourned to another judge to a date to be fixed with three hours reserved and that an early hearing date is to be given.

9. I make no order as to costs of the hearing today.