PENG FENGSHENG v. WONG TAK HUNG

HCA 1336/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1336 OF 2009

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D E C I S I O N

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1. This is an application by the defendant to vacate the trial date of this case which was fixed on 21 August 2012 with 6 days reserved. Leave to set down this case for trial was granted by Mr Registrar Lung on 19 October 2011. The actual trial date was fixed on 1 December 2011.

2. The case came before me for a PTR on 29 May 2012, and Mr Rimsky Yuen SC appeared for the defendant in that particular hearing.  By that time, the defendant had already informed the court that Mr Yuen, for some reasons, might not be able to conduct the trial himself. 

3. The defendant now applies to vacate the trial date on the ground that he is not able to engage an appropriate senior counsel to conduct the case on his behalf. 

4. Mr Yuen was appointed as the Secretary for Justice in late June.  According to the affirmation of the defendant, his handling solicitor had tried to engage 4 senior counsel, all from the same set of chambers, to conduct the case on behalf of the defendant after PTR hearing, but none of them is available. 

5. Further, the defendant had difficulty in briefing counsel to conduct the trial in August when many leading counsel would be away on holiday, and the choice of counsel is further limited by the fact that most of the documents in the present case are in Chinese or simplified Chinese.  As the change of senior counsel is not due to fault of the defendant and the freedom in respect of the choice of lawyer is a right guaranteed by Article 35 of the Basic Law, Ms Eu SC, counsel for the defendant, submits that the court should allow the defendant’s application to adjourn the trial.

6. After the implementation of the CJR, O 25 r 1B of the RHC provides that the trial date is a milestone date for the purpose of case management and may only be varied by application to the court where exceptional circumstances justify the variation.

7. Further, para 42 of Practice Direction 5.2 provides that milestone date will be immoveable save in the most exceptional circumstances and for that purpose, for instance, late instructions from client, change in the team of lawyers, the absence of prejudice to the other party which cannot be compensated for by costs, will not be treated as exceptional circumstances.

8. Despite the able submission of Ms Eu, I do not find that there are exceptional circumstances in the present case to justify the variation of the milestone date, ie the trial date.  Although the change of senior counsel is beyond the control of the defendant, he knew that Mr Yuen might not be able to conduct the trial as early as 29 May 2012 which was nearly 3 months before the commencement of trial.  In such circumstances, there should have been more than sufficient time for the defendant to engage some other appropriate counsel to conduct the case on his behalf.

9. Further, the defendant’s solicitor had only contacted 4 senior counsel in one set of chambers, and there should have been many other bilingual senior counsel in other chambers who would be available to take up the case.  Even if no other senior counsel is available, which I do not accept it to be the case, there should be many other junior counsel who have the sufficient ability and experience to handle a case of this nature which mainly involves issues of fact.  Hence in my judgment, there is no interference with the defendant’s right about the choice of lawyer and his right to have a fair trial is not jeopardised in the present case. 

10. It is also not appropriate to say is that no prejudice would be caused to the plaintiff by the adjournment of the trial which cannot be compensated for by costs.  The subject agreement of the claim was made in 2003.  The present proceedings were commenced by the plaintiff in June 2009.  The plaintiff has a right to have the case be resolved as soon as possible without any undue delay.  Further, anxiety and uncertainty caused by the delay of the resolution of the dispute is certainly a serious prejudice to the plaintiff.  If the trial has to be adjourned, it is likely that the plaintiff would have to wait for another year before the case can be tried.  The court cannot simply ignore such serious prejudice to the plaintiff.  Further, Practice Direction 5.2 expressly provides that the absence of prejudice to the other party which cannot be compensated for by costs will not be treated as exceptional circumstances.

11. There has been a new cultural for the conduct of litigation after the implementation of the CJR.  In managing the progress of the case, the court has to take into account and give effect to the underlying objectives laid down in Order 1A of the RHC, which include increasing costs effectiveness of the litigation and ensuring that a case is dealt with as expeditiously as is reasonably practicable. 

12. After reviewing the facts of the present case, I do not find that there are exceptional circumstances to justify the variation of the milestone date.  I therefore refuse the defendant’s application to adjourn the trial date.