HONG KONG LEE MAN SHAN MEDICINE MANUFACTURING LTD. v. HUA WEI (H.K.) PHARMACEUTICAL DEVELOPMENT CO. LTD. AND ANOTHER

HCA015529/1998

1998, No. HCA 15529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15529 OF 1998

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BETWEEN
HONG KONG LEE MAN SHAN MEDICINE MANUFACTURING LIMITED Plaintiff
AND
HUA WEI (H.K.) PHARMACEUTICAL DEVELOPMENT CO. LTD. 1st Defendant
CHIU WAN SHU trading as TAI PANG ENTERPRISES COMPANY 2nd Defendant

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Coram: The Honourable Madam Justice Yuen in Chambers

Date of Hearing: 23 September 1999

Date of Decision: 23 September 1999

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DECISION
(ON APPLICATION FOR ADJOURNMENT)

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1. This is an application for summary judgment. The Defendants have asked for an adjournment of this full hearing on two grounds.

2. The first ground is that the Plaintiff’s counsel’s skeleton argument was served on the Defendants’ solicitors in the afternoon of21st September, instead of in the morning of 21st September. The second ground is that the Defendants say that they wish to havean adjournment to reply to an affirmation which was itself served by the Plaintiff in reply on Monday, 20th September.

3. In relation to the first point, the Practice Directions of course say that the Plaintiff’s legal representatives should serve theskeleton argument 48 hours before the hearing. Here the delay, if any, was of half a day. But there are skeletons and there are skeletons.In the present case, the Plaintiff’s skeleton argument is short, comprising only of three pages of which the claim is set out onthe first page so that the arguments in effect only take two pages. The points made are brief and the skeleton argument refers toonly one case. A skeleton argument has been served by the Defendants’ counsel yesterday in answer to the Plaintiff’s skeleton. Therefore,any delay in this case is such that in the exercise of my discretion, no adjournment should be granted.

4. In relation to the second point, the Plaintiff’s affirmation in reply was served on Monday, 20th September, two clear days beforethe hearing date, in reply to the Defendants’ affirmation which was served on the Plaintiff’s solicitors on Saturday, 18th September,which was three clear days before the hearing date.

5. The Plaintiff’s affirmation in reply cannot, therefore, be said to be late and as such, it would not entitle the Defendants to anadjournment, and in any event, a defendant is not entitled without leave in summary judgment procedures to file any affirmation afterthe Plaintiff’s affirmation in reply.

6. However, the Defendants here say that this affirmation was not truly an affirmation in reply, because the Plaintiff had exhibitedother documents in its affirmations in support, and should have been aware from the Defence filed that the Defendants were runningthe point that the Plaintiff had no consent from the father to the use of the marks.

7. The Plaintiff’s affirmations in support of the summary judgment application exhibited documents which established the Plaintiff’scase. It did not exhibit documents to disprove the Defendants’ case. It was only when the 2nd Defendant filed his affirmation onSaturday that the Defendants purported to prove their case. So I find the Plaintiff’s 3rd affirmation was in truth and in fact anaffirmation in reply to the Defendants’ case, and not an affirmation in support of the Plaintiff’s own case. As such, therefore,there is nothing late in the Plaintiff’s 3rd affirmation. If a defendant chooses to file his affirmation in opposition only threeclear days before the hearing date, he cannot be heard to complain if his opponent’s affirmation in reply is served even closer tothe hearing date.

8. Therefore, taking all the circumstances into account and in the exercise of my discretion, I would refuse the application for anadjournment.

(Maria Yuen)
Judge of the Court of First Instance
High Court

Representation:

Mr. Paul Shieh instructed by Messrs. Linklaters for the Plaintiff

Mr. Tsang Kam Hung instructed by Messrs. S. T. Poon & Wong for the 1st and 2nd Defendants