RAYMOND ALAN MITCHELL v. LI LAI WA T/A WILFORD ANTIQUE CO

DCCJ013245A/2001

DCCJ13245/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 13245 OF 2001

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BETWEEN
Raymond Alan Mitchell Plaintiff
AND
Li Lai Wa t/a Wilford Antique Company Defendant

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Coram: H H Judge Carlson in Court

Date of Ruling: 9 June 2003

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R U L I N G

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1. I have before me an application to adjourn this trial which has been fixed since January this year.

2. The basis of the application is that the defendant, Madam Li Lai-wa, is said to have been arrested on the Mainland on an allegationthat she has been smuggling antiques, and the way the matter is put on her behalf by Mr Tso is that it would do her a great injusticeif I were not to accede to the application because, of course, if it turns out that she was wrongly arrested and because of thatwrongful arrest she was unable to defend this matter, that would obviously bring about a great injustice. And so for that reasonI should not allow the trial to proceed today.

3. Mrs Casewell, who resists the application on behalf of the plaintiff, will not have any of this. She points to the suspicious historyof this matter, where on a number of occasions the defendant has become “unavailable”, if I may put it that neutral way. First ofall, she filed her defence which contained a number of admissions; then there were applications that were made to strike out thedefence because it disclosed no cause of action; she was given leave to amend it and the amendment was made in a way that materiallydiffers from the version originally put forward and that is said to give rise to questions of credit so far as the defence case isconcerned. But not only that, the amendments were made late in the day and under the threat of an Unless Order. Then there were furtheroccasions when the defendant was unavailable.

4. And now suddenly, at the very last moment, at 3 o’clock on Thursday, Mr Tso, her solicitor, has received word through two intermediaries.One of them I believe is a Baptist minister in Hong Kong who received word through the defendant’s niece that she had suddenly beenarrested in Mainland China. There are no details. There is no independent proof in any documentary form of her arrest. There is nocharge sheet or some other piece of paper. Perhaps that might be excusable on the basis that these things can happen suddenly andshe was arrested apparently, if that is true, on either Wednesday or Thursday of last week, but we do not even know where it wasthat she was arrested, where she is being held, in which town she is being held. All of this is most unsatisfactory.

5. The other matter is this: this case is being heard in the Technology court. The reason for that is that the plaintiff, it is said,is gravely ill. He was unwilling to come to Hong Kong – sensibly – due to his medical condition and the fact that we have had ourown very serious problems with SARS. And so the case is being heard through the facilities provided by the Technology court. He intendsto undergo a period of treatment after this case is over. That having been said, I do not have any medical evidence about his condition.I rely on what Mrs Casewell has told me on the basis of her instructions.

6. There is also the question of when this matter could come back. On behalf of the defendant, it is rather confidently submitted thatshe will be released and available at the end of July. I ask the rhetorical question: how can she possibly know that she is goingto be released in July? And that in itself lends a degree of suspicion to the original contention that she has been arrested in thefirst place. How can someone indicate when they are going to be released by the Mainland authorities in this way?

7. I had thought that perhaps we could steer a middle course by allowing the plaintiff to give his evidence by video link, and the plaintiff’sexpert witness, Mr Tregaskis, one of the two witnesses he is calling – Mr Tregaskis is presently in London and arrangements havebeen made for him to give evidence by video link – and then adjourn the matter for an indeterminate period but not too far aheadso that the defendant might become available.

8. Nevertheless, Mr Tso tells me that those are not his instructions – he seeks an all or nothing resolution. He says that he is notin funds, he is in no position to cross-examine the witnesses, although one assumes he has got instructions. The defendant herselfhas provided a witness statement and that would provide the basis of the instructions, but Mr Tso says, no, his instructions arelimited to asking for an adjournment.

9. He would have wished to have instructed counsel to conduct the trial and those were the instructions that he received from the defendantherself. She has not provided any funds for counsel to be briefed and Mr Tso is left with this rather difficult position for whichhe cannot be blamed, and he says that if I do not allow the adjournment in its entirety to some indeterminate date in the future,hopefully towards the end of July, then he will be applying to come off the record. That is his situation, and so I have to dealwith this matter by adopting an all or nothing approach. I either allow the adjournment in its entirety or I refuse it.

10. Well, it seems to me that when one has regard to all of the circumstances of this case, and I have drawn attention to those circumstanceswhich substantially appear in the affidavit of Mrs Casewell, and I look at the whole history of the matter, then in my judgment,the interests of justice are best served by my refusing the application for the adjournment and this trial must now proceed.

11. The costs of the application for the adjournment will be to the plaintiff.

Ian Carlson
District Court Judge

Representation:

Present: Mrs Usha Casewell, of Messrs Boase, Cohen & Collins, for the Plaintiff
Mr H S Tso, of Messrs Tso & Associates, for the Defendant