MAN FONG HANG v. MAN PING NAM AND OTHERS

HCA007935D/1998

HCA 7935/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7935 OF 1998

____________

BETWEEN
MAN FONG HANG (文晃恆)
(the surviving administrator of the estate of Man Mou Hei (文戊喜) also spelt as Man Mo Hei, Man Mau Hei and ManMo Hi and also known as Man Hei (文喜)
Plaintiff
AND
MAN PING NAM (文炳南),
MAN YING LAM (文英林),
and MAN LEUNG (文良), Managers of
MAN SHEK TSUNG (or CHUNG) WUI (文石涌會)
Defendants

____________

Coram: Deputy High Court Judge Lam in Court

Date of Hearing: 21 July 2003

Date of Ruling: 21 July 2003

____________

R U L I N G

____________

1. The trial of this action was scheduled to start today. However, one of the Defendants, Man Leung, is in England and he wrote to thiscourt indicating that he could not fly back to Hong Kong for the purpose of trial on medical grounds. He asked for an adjournment.The matter is complicated by the fact that he was jointly represented together with the other two defendants by Messrs ChristineM Koo & Ip [“the Firm”]. I was told by counsel for the Defendants, Mr Neoh SC, that the other two defendants did not want anadjournment. Obviously, there is a conflict amongst the defendants. Mr Neoh also informed the court that he had no instructions toapply for an adjournment on behalf of Man Leung.

2. Although a summons was taken out at a very late stage on 17 July 2003 by the Firm for an order under Order 67 rule 6, no order couldhave been granted at the hearing on 18 July 2003 for want of service of the application on Man Leung. Hence, up to this stage, theFirm is still solicitors on the record acting for Man Leung.

3. Today, before Mr Fung SC opened his case for the Plaintiff, I brought to parties’ attention the letters sent by Man Leung to thecourt, including its enclosures. There were two letters, one dated 14 July 2003 and the other one dated 18 July 2003. I should mentionthat the fax copy of the letter of 14 July only came to my attention after the pre-trial review on 15 July 2003, hence I could nothave brought that up at that stage. The fax copy of the letter of 18 July 2003 only came to my attention after the case has startedthis morning.

4. In these circumstance, counsel agreed there are two matters that this court has to deal with,

(a) the cease to act application by the Firm;

(b) the “application” for adjournment by Man Leung.

5. Technically, the second application is not before the court properly since the solicitors on the record acting for Man Leung didnot make any application for adjournment on his behalf. However, I do not think it right for this court to ignore these letters fromMan Leung in view of the cease to act application.

6. Counsel also agreed that the two matters are related. The outcome of the cease to act application could have an impact on the applicationfor adjournment. Mr Neoh submitted that the court should deal with the cease to act application first. Mr Fung accepted that logicallythat should be the approach adopted in the present case.

7. Mr Fung applied to be supplied with the papers in connection with the cease to act application and for leave to be heard in thatapplication. His stance was that insofar as the cease to act application would have an impact on the application for adjournment,the Plaintiff should be allowed to make submissions in connection thereto.

8. Mr Neoh accepted that this court does have the power to make such orders (see Fairview Park Property Management Ltd v Sun Wai Chun [1999] 4 HKC 42). However, he submitted that these orders should not be made unless there are special circumstances justifying the same. Normally,an application for an order of cease to act should be regarded as a private matter between a litigant and his solicitors and hisadversary should not be involved. In this connection, Mr Neoh’s stance is supported by the English Court of Appeal’s decision inRe Creehouse Ltd [1983] 1 WLR 77. This is further reinforced by O.67 r.6A in Hong Kong which prohibited inspection of the affidavit in support of such applicationby the other party without leave of the court.

9. In my judgment, it is necessary for the due administration of justice to recognize that application for cease to act should be madepromptly to avoid disruption to trial dates. A late application might entail a risk that a litigant lacks reasonable time to arrangealternative legal representation or to prepare to act in person. In this sort of situation, the court will be faced with a dilemma.The court may feel necessary to explore the option of adjourning the trial to enable the litigant to seek proper legal representation.In that case, the other party to the action could be affected by the outcome of a late application under O.67 r.6. Mr Fung rightlyreminded this court that this is not the sort of situation facing the English Court of Appeal in Re Creehouse.

10. In the present case, Man Leung did not terminate his instructions to the Firm. To the contrary, from the correspondence he sent tothe court together with its enclosures, it can be seen that he had instructed the Firm to apply for an adjournment on 1 July 2003.Yet no application has been made despite pre-trial reviews being held on 7, 9 and 15 July 2003. In those circumstances, if the Plaintiffhas to meet an application for adjournment on the first day of trial, I think Mr Fung can justifiably ask for an explanation as towhy no application has been made earlier. The material filed in support of the O.67 r.6 application may supply the answer.

11. Further, Man Leung had written to the court and disclosed in his enclosures his communication with his solicitors on the questionof adjournment. To that extent he waived whatever privilege that could arguably be attaching to the solicitor and client correspondenceon this subject. As I see it, the only purpose of Man Leung disclosing his letters to his solicitors on the request for adjournmentwas to show this court that he had made such a request on the first opportunity, hence he was not at fault regarding delay in makingthe application after 1 July 2003. Once this is put into issue, the privilege attached to the other correspondence, viz. those fromthe Firm to Man Leung, should be waived impliedly. I do not think the affirmation filed in support of the O.67 application disclosedother confidential material.

12. Even if I were wrong in these analyses, Nazareth VP held in Fairview Park that the affidavit filed under O.67 r.6 were not privileged once they were put before the court. Mr Neoh did not accept that to bea correct statement of the law. I am however bound by that decision.

13. As with the exercise of other discretion, how I should exercise my discretion on these requests by Mr Fung must be a balancing exercise.I agree that there must be special circumstances to justify an order for disclosure and leave being given to the other party to participatein the hearing of an application under O.67 r.6. On the facts of the present case, given the circumstances under which Man Leungmade his “application” for adjournment and the material he relied upon, and the belated stage at which the Firm made the applicationunder O.67 r.6, and having regard to the potential prejudice that might cause to Man Leung and the potential impact of this applicationon the trial dates, I am of the view that it is a special case where the Plaintiff should be allowed to have access to the affirmationfiled in support of the O.67 application. However, just in case I have missed anything in the affirmation which disclosed confidentialmaterial over and above those relating to the question of adjournment, that could be dealt with by way of appropriate editing. Ishall hear Mr Neoh further to see whether there should be any editing.

14. Further, given the impacts that the O.67 application might have on the application for adjournment, I shall grant leave to the Plaintiffto address the court in that application. In the light of this, despite counsel’s submissions on the sequence of hearing, I am ofthe view that the two applications should be heard together.

(M H Lam)
Deputy High Court Judge

Representation:

Mr Patrick Fung, SC, instructed by Messrs Baker & McKenzie, for the Plaintiff

Mr Anthony Neoh, SC, Mr K M Chong and Mr Ernest Koo, instructed by Messrs Christine M Koo & Ip, for the Defendants