NG SHING CHIT v. LEE KIN CHU
- Citation
- NG SHING CHIT v. LEE KIN CHU
- Status
- Judgment
- Jurisdiction
- Hong Kong
- Court
- Court of First Instance
- Decision
- 24 July 2017
- Posture
- Adjournment Application in Civil Trial / Trial Fixed to Begin (trial Date)
- Case number
- HCA1228/2015
- Language
- English
More details
- Court
- Court of First Instance
- Decision
- 24 July 2017
- Posture
- Adjournment Application in Civil Trial / Trial Fixed to Begin (trial Date)
- Case number
- HCA1228/2015
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
Adjournment was granted because the defendant's recent and serious illness, supported by a hospital note, rendered her a material witness whose attendance was necessary; the plaintiff's interest was not irreparably prejudiced given the relief sought (transfer subject to life interest) and the plaintiff did not oppose an adjournment provided corroborating affirmation was filed, so the trial dates were vacated and a direction hearing fixed.
Court disposition
Adjournment granted; trial dates vacated; direction hearing scheduled
Orders
- Adjournment of the trial and vacation of trial dates from 25 to 28 July 2017
- Defendant to file an affirmation by her son Mr Go Man Yin by 28 July 2017 confirming the submissions made in court
- A direction hearing to be fixed no earlier than two weeks from the decision date for the parties to inform the court of the defendant's condition and to assist in fixing a new trial date
02
Material facts
Parties
Plaintiff
Plaintiff Counsel: Mr PoonDefendant
Defendant Counsel: Mr WongMr Go Man Yin
Witness (defendant's Son)Amounts and remedies
- Trial Days Reserved: 5
- Defendant Age: 81
03
Procedural history
Posture
Adjournment Application in Civil Trial / Trial Fixed to Begin (trial Date)
04
Questions and positions
Legal issues
- 01
Whether the defendant's recent illness justifies adjournment of a fixed trial date
- 02
Whether the defendant is a material witness whose absence would prejudice just resolution
- 03
Whether the adjournment would cause irremediable prejudice to the plaintiff
- 04
Whether the defendant discharged the onus to prove need for adjournment
Party arguments
- Applicant
- The defendant lost consciousness and was admitted to hospital with an X-ray showing a possible brain lesion discovered two days before trial; the defendant is 81 and a key witness; the condition was newly discovered and not due to non‑compliance, so an adjournment is required.
- Respondent
- The plaintiff did not contest the basic facts but requested that the defendant's son's oral submissions be put into an affirmation; the plaintiff noted potential prejudice but sought transfer of the property subject to the defendant's life interest, not immediate possession.
05
Court’s reasoning
Legal principles
- 01
Case management principles / judicial practice
Court will only vary milestone dates such as trial dates for exceptional circumstances
- 02
Case management principles / judicial practice
Court has a duty to manage cases actively to ensure expeditious and just resolution
- 03
Judicial precedent / common law principle
Illness of a party or an important witness may justify adjournment if illness and materiality of evidence are established and the adjournment does not cause irremediable injustice
- 04
Judicial precedent / common law principle
Onus is on the party seeking adjournment to prove the need for it
06
Ratio, limits and disposition
Ratio decidendi
Adjournment was granted because the defendant's recent and serious illness, supported by a hospital note, rendered her a material witness whose attendance was necessary; the plaintiff's interest was not irreparably prejudiced given the relief sought (transfer subject to life interest) and the plaintiff did not oppose an adjournment provided corroborating affirmation was filed, so the trial dates were vacated and a direction hearing fixed.
Obiter and limits
- The court should be satisfied both of the fact of illness and of the materiality of the witness's evidence before ordering adjournment
- Adjournments should be balanced against the plaintiff's right to timely resolution and may be compensated by costs where appropriate
Court disposition
Adjournment granted; trial dates vacated; direction hearing scheduled
- Adjournment of the trial and vacation of trial dates from 25 to 28 July 2017
- Defendant to file an affirmation by her son Mr Go Man Yin by 28 July 2017 confirming the submissions made in court
- A direction hearing to be fixed no earlier than two weeks from the decision date for the parties to inform the court of the defendant's condition and to assist in fixing a new trial date
Source and reliance status
Court of First Instance · 24 July 2017
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Court of First Instance
Judgment· 24 July 2017
bjbj vwc) Ng<t t Date of Hearing: 24 July 2017 Date of Decision: 24 July 2017 decision This is an application by the defendant to adjourn the trial which was fixed to begin today with five days reserved. This morning, the defendant s counsel, Mr Wong informed the court that the defendant lost consciousness last Saturday and was admitted to hospital. X-ray conducted on the defendant found that there was a tumor. The case was adjourned upon Mr Wong s application to 2:30 ormed the court that last Saturday, the defendant fell and lost consciousness. The defendant s son was with her and she was sent to the hospital. X-ray was conducted and it showed that there was an unclear mark on the forepart of her brain, the significance of which is subject to consultation with the brain specialist which will happen shortly. The defendant s son had consulted a psychiatrist Dr o attend trial and answer questions. A note issued by the hospital was submitted to the court to the effect that the defendant cannot attend the trial today. The defendant was 81 years old. Since the 1970s and until about the 10 years ago, the defendant and the plaintiff were lovers and the present dispute relates to a property which was once registered in the joint names of the plaintiff and the defendant. It is common ground that the defendant was not only a party but a key witness in this case. The case would depend on
the credibility of the evidence of the witnesses, especially the plaintiff and the defendant themselves. Mr Wong said since the defendant s condition was only discovered two days ago, it was not a case where the adjournment was due to the defendant s failure to comply with court procedures. Court will only vary milestone dates, such as trial date, if there are exceptional circumstances justifying the variation. Court has a positive duty to manage cases actively to achieve the underlying objectives to ensure that cases are dealt with as expeditiously as is reasonably practicable. Nevertheless, in the process the court should exercise power to secure just resolution of disputes in accordance with the substantive rights of the parties. Illness of a party or an important witness may be a reason. The Court has to be satisfied of the fact of his illness and of the materiality and importance of his evidence, and that the adjournment will not cause injustice to the other party which cannot be compensated by costs. The onus is on the defendant to prove the need for such an adjournment. Mr Poon was not challenging the basis of the adjournment but he asked that whatever Mr Wong had submitted from the bar table today should be put into an affirmation by the defendant s son after today s hearing. If so, Mr Poon would not be taking a point that the evidence was submitted by Mr Wong. The
plaintiff would in some way prejudiced as he is entitled to have the proceedings being brought to a conclusion as soon as reasonably and fairly practical. Having said that the relief sought by the plaintiff was that the defendant should transfer the property to him subject to the defendant s life interest. So this is not a case where the plaintiff is seeking possession of the property now whilst the defendant is still alive. Having heard the parties, I would order an adjournment of the trial and the vacation of the trial dates from 25 to 28 July 2017. I would also order the defendant to file an affirmation by her son, Mr Go Man Yin, by 28 July 2017 confirming what Mr Wong had submitted to the court today. Instead of fixing a date for trial when the defendant s condition has not been ascertained, the parties agreed that a direction hearing should be fixed no earlier than 2 weeks from now where the parties would inform the court of the condition of the defendant and be ready to assist the court to fix a new date for the trial. Accordingly, I direct that a hearing be fixed no earlier than 2 |o\I h sl h sl h sl h sl h sl hr}g gd sl gd sl gd sl lhc_c hr}g h~~} h sl hr}g h~~} h sl & gd hOA, hOA, hOA, hOA, hOA, hJ;@ gdOA, &`#$ gdGO hOA, hOA, hOA, hOA, hOA, hOA, hOA, hOA, hOA, hOA, hOA, hOA, & #$ & #$ &
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