IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
COMMERCIAL ACTION NO 4 OF 2013
(Transferred from High Court Action No 628 of 2012)
D E C I S I O N
1. This application by the 1st defendant to adjourn the trial which is to take place on 31 July 2014 with 10 days reserved is, on any account, a very late one.Further, it is made contrary to the direction of this court given on 26 September 2013 that any interlocutory application be takenout on or before 11 October 2013.
2. It is said that the 1st defendant is under investigation in the Mainland over a criminal matter and that his bail conditions do not allow him to attend thetrial in Hong Kong.
3. I have this morning a 12-page skeleton submissions of the plaintiff as well as an affirmation filed this morning in opposition tothe adjournment application. Mr Pao, who appears for the 1st defendant, asks that these matters be adjourned so that reply evidence can be filed before the determination of this application.
4. To begin with, an application of this nature must be properly supported with the deponent of the supporting affidavit condescendingto the relevant details of his evidence.
5. I accept that it is normally very difficult for a tribunal to determine an application before the applicant has filed his replyevidence and thus the court’s hands are often tied in circumstances of this sort. However, I am not satisfied that the evidencefiled by the 1st defendant has properly demonstrated that he will be unable to even give his evidence by way of video link.
6. The evidence filed in this regard is quite unsatisfactory. What is relied upon is an oral statement said to have been made to the1st defendant when he was granted bail by the head of the Commercial Crime Department of the Public Security Bureau of Haikou City. Thisstatement suggests that the 1st defendant can have no communication with anyone unless the same is not related to the Shagang Group. Even taking that statementat the highest, it must in my view be read with common sense. I am unable to see why the giving of evidence in a set of legal proceedingsin a well-recognized jurisdiction can be an infringement of that bail condition. Mr Pao has not been able to demonstrate to me whythat can be so.
7. I am not attracted by the suggestion that further evidence be filed to elaborate on this particular bail condition. The 1st defendant cannot be allowed to take advantage of the deficiency of his own evidence to delay yet further the determination of thisvery late application.
8. I see no reason to allow this application to be turned into a satellite litigation, which I have little doubt will happen if furtherevidence is to be filed. I see no reason to allow the determination of this matter be further delayed if I am not satisfied thatthe material currently before this court sufficiently justifies the application.
9. For these reasons, this application is dismissed.
Mr Simon Powell, of Latham & Watkins, for the plaintiff
Mr Jin Pao, instructed by Leung & Lau, for the 1st defendant
Mr Victor Dawes, instructed by Brenda Chark & Co, for the 2nd defendant