TSANG YUEN WANG t/a Second Brother（二師兄） v. LEUNG WANG HONG

DCCJ 2772/2022

[2025] HKDC 1123

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2772 OF 2022

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JUDGMENT

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A.Introduction

1.  The plaintiff (“P”) commenced these proceedings seeking to enforce a written settlement agreement dated 28 April 2022 (the “Settlement Agreement”) against the defendant (“D”), who is a director and a 20% shareholder of a company known as Leader Best International Limited (“LBI”).

2.  It is said that the Settlement Agreement was to resolve the dispute arising out of the early determination of the tenancy agreement (the “Tenancy Agreement”) in respect of the premises known as Shop 4 on the Ground Floor of Tuen Mun Centre, Nos 2, 4, 6 and 8 Wo Ping Path Nos 7-11, 15-25, 29, 33-35 Yan Chung Street, Tuen Mun (the “Premises”) as between P as the tenant and LBI as the landlord.

3.  According to the Settlement Agreement, D was to pay a sum of HK$1,000,000 to P by 30 June 2022, failing which, D would have to also pay contractual interest at 8% per day.  P however contends that the agreed contractual rate of interest is 0.8% per day instead.

4.  P is therefore claiming against D for the sum of HK$1,000,000 together with contractual interest at 0.8% (ie a sum of HK$8,000) per day as from 1 July 2022, ie a total sum of HK$9,972,000 as at the date of the trial before me on 24 June 2025 with further interest at judgment rate on the said sum[1].

5.  D disputes that P is entitled to enforce the Settlement Agreement on the ground that (1) he only entered into the same under duress; (2) the terms thereunder were too vague; and (3) the same is void for want of consideration.

6.  It appears that after the filing of witness statements, D has lost interest in defending the action. He did not attend the PTR on 16 April 2025.

7.  The trial of these proceedings was fixed to be heard before me on 24 June 2025.

8.  Despite D’s absence at the trial, I was satisfied on the affirmation of service filed by P that sufficient notice had been given to D of the trial.  It was appropriate to proceed to hear the evidence of P as well as P’s submissions.

9.  At the start of the trial, P’s counsel, ie Mr Sin, informed the Court that P’s claim together with contractual interest at the daily rate of 0.8% will be limited to HK$3,000,000 and he does not intend to claim any post-judgment interest.

B. Material Factual Background and The Parties’ Respective Cases

10.  The relevant factual background can be briefly summarised as follows.

11.  P is a merchant who operates a retail business of fresh meat products as a sole proprietor with the trade name of “Second Brother” (二師兄).

12.  D is a director and a 20% shareholder of LBI.

13.  On 19 May 2021, LBI as the landlord and P as the tenant, entered into the Tenancy Agreement[2] in which the Premises was let to P for a term from 1 June 2021 to 15 December 2023, at the monthly rent of HK$45,000.

14.  D was the one who executed the Tenancy Agreement on behalf of LBI.  D contends that the Tenancy Agreement was a sub-tenancy agreement in that the Premises was only part of the premises LBI rented from Woodnesson Development Limited (“WDL”).

15.  In any case, there is no dispute that it was D who informed P that LBI wished to terminate the Tenancy Agreement prior to the expiration of the term.

16.  There is also no dispute that P asked for a sum of HK$1,000,000 as compensation for LBI’s early termination of the Tenancy Agreement.  It is P’s case that the said sum was to be paid in consideration for full and final settlement for all loss and damages suffered by P as a result of LBI’s early termination of the Tenancy Agreement.  The same therefore constituted a promise of an absolute forbearance to sue LBI for its breach of the Tenancy Agreement.

17.  However, D expressed to P that since he only held 20% of LBI, he was not in a position to make any decision on behalf of LBI but he would relate such a concern and request to LBI’s other shareholders.

18.  P’s case is that D subsequently agreed to compensate P in his personal capacity.  In other words, D agreed to pay the sum of HK$1,000,000 (the “Settlement Sum”) as full and final settlement of P’s loss and damage in exchange for an absolute forbearance to sue LBI.

19.  On 28 April 2022, P attended D’s office.

20.  According to P, it was D who then drafted the Settlement Agreement in Chinese, which contained, inter alia, the following material terms[3]:

“…甲方[梁宏康]租借二師兄原租期為2021年6月1日至2023年12月15日，因我方（甲方）原因現鑒於2022年4月29日提早解約，現雙方同意於2022年6月30日，甲方需支付二師兄港幣一百萬元正，$1,000,000.00作為賠償金，和解此事。

如未能於2022年6月30日交付，需支付日息8厘。”

21.  Further, it is P’s pleaded case[4] that:

“Notwithstanding the fact that the Settlement Agreement contained the sentence “If, on 30 June 2022 [Party A] is unable to pay [Second Brother], [Party A] has to pay [Second Brother] interest of 8% per day”, it is the Plaintiff’s case that on 28 April 2022 at the Defendant’s Office and by the time of the conclusion of the Settlement Agreement:

(a)  the Plaintiff said to the Defendant that the former expected from the latter a daily interest at 0.8% as opposed to 8% on the Settlement Sum per day if the Defendant is unable to pay the Settlement Sum in full to the Plaintiff on or before 30 June 2022, to all which the Defendant agreed orally and by conduct; or

(b)  alternatively, the Defendant said to the Plaintiff that the former shall give the latter a daily interest at 0.8% as opposed to 8% on the Settlement Sum per day if the Defendant is unable to pay the Settlement Sum in full to the Plaintiff on or before 30 June 2022, to all which the Plaintiff agreed orally and by conduct; and

(c)  hence parties intended an antecedent express stipulation (the “Antecedent Express Stipulation”), i.e. for the daily interest to be at 0.8% on the Settlement Sum from 1 July 2022 onwards, to be both (i) in addition to what appears in the Settlement Agreement and (ii) continued in force with the words expressly written in the Settlement Agreement; and

accordingly, it is an express term of the Settlement Agreement that, in the event the Defendant is unable to pay the Settlement Sum in full to the Plaintiff, on or before 30 June 2022, the Defendant is to be further liable for an interest of 0.8% per day, on a daily basis, of the Settlement Sum, to the Plaintiff.”

22.  On 29 April 2022, P returned vacant possession of the Premises.

23.  P never commenced any proceedings against LBI for breach of the Tenancy Agreement and D had never paid P the HK$1,000,000 nor any interest in part or in full.

24.  It is therefore P’s case that he is entitled to the sum of HK$1,000,000 together with contractual interest at 0.8% (or HK$8,000) per day as from 1 July 2022.

25.  D’s case is that he did not draft or sign the Settlement Agreement voluntarily.  According to D, he did so under duress of P with threats like P’s business partner had triad background and he knew where D live and they would go after him, his wife and children.  Therefore, it was P who dictated the contents of the Settlement Agreement and forced D to draft and sign the same.

26.  Apart from relying on duress, D also says the terms of the Settlement Agreement were too vague and no consideration was provided.

C. Relevant Issues

27.  The key issues for this trial[5] are:

(1)  Whether the Settlement Agreement is valid and enforceable:

(a)  Whether the Settlement Agreement was signed under duress;

(b)  Whether the terms of the Settlement Agreement were vague; and

(c)  Whether there was no consideration under the Settlement Agreement;

(2)  Whether D was in breach of the Settlement Agreement; and

(3)  Whether P is entitled to receive damages from D, and if so, the amount of damages that P is entitled to receive from D.

D. The Viva Voce Evidence

28.  P is the only witness who gave evidence at trial.

29.  As D did not attend court to confirm his witness statement and testify, I will disregard his witness statement in its entirety.

30.  The approach for assessment of the credibility of witnesses is trite:

(1)  Contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  In deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events; and

(3)  In determining a witness’s credibility, it is also important to have regard to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness’s evidence, which type of consistency is often tested by a comparison between the witness’s oral testimony and his or her witness statement.

See: Hui Cheung Fai v Daiwa Development Limited & Anors.[6]

31.  As will be elaborated below, P’s evidence and explanation regarding the 0.8% daily contractual interest is convoluted and filled with inconsistencies.  Overall, I do not find P to be a reliable witness.  I shall only give weight and accept P’s evidence or explanation when they are supported by documentary or other evidence or findings.

E. Analysis of Issues

E1.  Whether the Settlement Agreement is Valid and Enforceable

32.  Having considered all the relevant evidence available before me, I am satisfied that the Settlement Agreement is valid and enforceable.

33.  First, where D is making a serious allegation of duress to the persons, the burden is on D to prove the same.  However, D did not give evidence in respect of his case.

34.  More importantly, the WhatsApp records[7] produced by P clearly show that:

(1)  On 24 April 2022, it was D who told P that “而家咁，29交場；我29號俾票你” which obviously referred to the demand made to P that he should deliver vacate possession of the Premises on 29 April 2022 and D would give him a cheque;

(2)  P expressly demanded a cheque in the sum of HK$1,000,000 should be given to him by noon on 28 April 2022; and

(3)  D even texted P and said “收到；唉，今次係喺對你不起…”.

35.  The above conversation obviously did not sit well with an allegation of duress or that P had made various threats to D.

36.  The WhatsApp records also show that it was D who asked P to go to his office on 28 April 2022 at 12:30pm and provided the passcode to P.  It is inconceivable that D would invite P to attend his office if P had indeed made various threats to him and his family and/or applied any form of illegitimate pressure.

37.  The fact that D only saw fit to make a report to the police on 27 May 2022[8] appears to be self-serving.

38.  Second, having considered the Settlement Agreement as a whole, I am also not satisfied that its terms were vague.

39.  The parties, the Settlement Sum as well as the time by which the Settlement Sum should be paid and even the contractual interest payable were all clearly stipulated.

40.  I shall specifically deal with P’s case on the contractual interest when I come to the analysis of the relevant issue of damages below.  This however does not have any bearing on whether the Settlement Agreement should be enforceable or not.

41.  Third, I am also not satisfied that the Settlement Agreement is void for no consideration.

42.  The Settlement Agreement clearly provided that it was to resolve or settle the dispute arising out of the early termination of the Tenancy Agreement (ie 和解此事).

43.  It is trite that forbearance to sue amounts to good consideration and that consideration need not move to the promisor: Million (Far East) Ltd v Manley Best (International) Food Ltd and Another.[9]  It is also not for the court to question the “sufficiency” of consideration.

E2.    Whether D was In Breach of The Settlement Agreement

44.  There can be no dispute that D was in breach of the Settlement Agreement.

E3.  Whether P is entitled to receive damages from D, and if so, the amount of damages that P is entitled to receive from D

45.  In view of my determination above, P is entitled to the Settlement Sum of HK$1,000,000.

46.  Insofar as the contractual interest is concerned, P has expressly abandoned the claim of contractual interest at 8% per day which is clearly provided under the Settlement Agreement.

47.  P’s evidence is that despite the said written term, the parties had in fact agreed to 0.8% daily interest being applicable as from 1 July 2022.

48.  I am not satisfied that the parties had indeed agreed to such a contractual rate of interest which is expressly contradicted by the written term of 8% daily interest.

49.  First, P’s pleaded case at §29 of the Amended Statement of Claim[10] was only amended as per Deputy District Judge Chase Pun’s Order on 16 April 2025 at the PTR when the action was commenced on 20 July 2022, ie almost 3 years ago.  P has not come up with an explanation as to why the amendments only came about at the PTR.

50.  The pleaded case itself is also unclear in that P runs an inconsistent alternative as to who first said and raised “a daily interest at 0.8% as opposed to 8% on the Settlement Sum per day” should be paid.

51.  Second, where P tried to orally explain that the 8% stipulated in the Settlement Agreement was a mistake (“手民之誤”), he could not provide a credible explanation as to how the mistake came about.

52.  Initially, P sought to explain that the understanding was that 8% was actually 0.8%(“總之理解就係0.8厘”).  When I asked P why 8% was understood to be 0.8%, he simply repeated his answer that it was a mistake (“手民之誤”) and the parties’ agreement was 0.8% (“大家協議係0.8%”).  At one point, P even tried to suggest “8% was indeed 0.8%” (“8厘咪即係0.8%囉”).

53.  Given that P is a merchant operating his own business, I do not accept his mere assertion that 8% was somehow understood to be 0.8%.

54.  Third, P’s pleaded case and oral explanation as to how the agreement on the contractual interest came about is convoluted and filled with inconsistencies.

55.  P’s case is that he did not raise the issue of interest on 24 April 2022 and the same was only mentioned for the first time on 28 April 2022 at D’s office.  P initially said it was him who told the Defendant that he needed extra protection and interest should be included, and it was P who raised the actual rate of interest ie 8%(“8厘”).  According to P, D even said “yes, the sum is not a big deal, [I] must be able to give you [the sum] within two months” (“佢話好，佢話錢又唔係多一定俾到你，兩個月內一定俾到”).  After this was communicated, D then took out a paper and drafted the Settlement Agreement and P looked at it before signing on the same.

56.  P’s oral account above is inconsistent with §53 of his witness statement which stated that it was D who suggested to pay 8% interest if the Settlement Sum could not be paid within 2 months(“咁啦，我比返八厘息你啦，咁對大家有個保障囉”).[11]

57.  When P was referred to his witness statement and §29 of the Amended Statement of Claim, P then changed his oral evidence and said it was indeed D who suggested the 8% interest but insisted that the parties’ understanding at the time was 0.8% daily interest should apply.

58.  When P’s own counsel further asked him on the basis for such a “mutual understanding” (“俾8厘息，點樣出現0.8厘，0.8%點樣出黎”), P then mentioned for the first time that he took a calculator out and pressed a figure of 8,000 a day; as the Settlement Sum was HK$1,000,000, HK$8,000 per day would be 0.8% (“因為當時呢咁有篤嗰個計數丫嘛，當時有篤計數機，當時100萬係每日八千蚊，所以理解係0.8%；我拎出嚟話，如果還唔到就係呢個利息，成件事就係咁”).

59.  The aforesaid explanation was only mentioned for the very first time in the witness stand.  Further, the fact that it was P who took the calculator out and indicated HK$8,000 per day should be paid as interest is again inconsistent with his clarification that it was D who first raised and mentioned the 8% daily interest.

60.  Fourth, I have already mentioned why I find the so-called understanding of 8% per day should mean 0.8% per day is incredible.  I do not accept P’s evidence that D also had this so-called misunderstanding and he also meant 0.8% per day when he wrote 8% (日息8厘) on the Settlement Agreement.

61.  More importantly, if there was in fact such a misunderstanding or mistake, there is no reason why P did not or could not spot the mistake when he read the Settlement Agreement before signing on the same.  He could have pointed that out to D and demanded the same be revised before signing on the same.

62.  In all circumstances, I do not find P’s evidence relating to the contractual interest payable to be credible or reliable when the same is expressly contradicted by the written term of the Settlement Agreement.

F. Conclusion

63.  During closing submissions, I enquired with Mr Sin as to P’s position if I were to find against P regarding his case on the 0.8% daily contractual interest.

64.  Mr Sin indicated that P’s fall-back position is that he would nevertheless be entitled to the Settlement Sum of HK$1,000,000 and P would further claim post-judgment interest at judgment rate as from the date of judgment until payment.

65.  In view of my determinations above, I find Mr Sin’s fall-back position to be reasonable, and I accede to the same.

66.  For the above reasons, I make the following orders:

(1)  D is to pay P the sum of HK$1,000,000 together with interest at judgment rate from the date of judgment until payment; and

(2)  There be a cost order nisi that D shall pay P’s costs of this action including all costs reserved, if any, to be taxed if not agreed with certificate for counsel.

67.  The costs order nisi shall become absolute in the absence of any application to vary the same within 14 days of this Judgment.

DCCJ 2772/2022

[2025] HKDC 747

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2772 OF 2022

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REASONS FOR DECISION

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The Plaintiff’s application for adjournment

1.  At the beginning of the pre-trial review (“PTR”) hearing on 16 April 2025, at which the Defendant who had filed a Notice to Act in Person did not appear, the Plaintiff through his counsel, Mr Sin, applied for an adjournment of the hearing to either a 2^nd PTR or a hearing for case management summons (“CMS”).

2.  Mr Sin submitted that the adjournment would give the Defendant a chance to state his position clearly as to whether he still intends to defend the Plaintiff’s claim. Mr Sin further submitted that he would like the Court to make an order that the Defendant’s Defence be struck out pursuant to Order 25, rule 9, paragraph (6)(b)(i) of the Rules of the District Court, Cap 336H (“RDC”) on the ground that the Defendant has failed to give certain information to the Court and to the Plaintiff, namely, whether the Defendant still intends to defend the Plaintiff’s claim in these proceedings.

3.  The aforesaid application was made orally without taking out a Summons, and was not supported by affidavit evidence.

4.  At first, Mr Sin submitted that if an adjournment was granted, the Plaintiff would during the adjournment take out a Summons for striking out the Defence as aforesaid, returnable at the hearing of the 2^nd PTR or CMS. However, in the course of the exchanges between Mr Sin and this Court, Mr Sin informed the Court that during the adjournment, (the solicitors for) the Plaintiff would by letter enquire with the Defendant and ascertain whether he is prepared to attend the hearing of the 2^nd PTR or CMS, and whether he would attend the trial fixed for 24 June 2025. If the Defendant did not give an answer to their enquiry, which means the Defendant has failed to give such information to the Court, and then the Court may order his Defence be struck out under Order 25, rule 9(6)(b)(i). At one stage, Mr Sin also suggested that the failure to attend hearing is by itself a piece of information showing that the Defendant had no intention to proceed with his defence against the Plaintiff’s claim.

The parties’ respective cases

5.  It is worth for me to set out the parties’ respective cases briefly before I go into the Plaintiff’s said application.

6.  As set out in the Joint Statement of Issues in Dispute, the Plaintiff’s claim and the Defendant’s defence are quite straightforward, and not many issues are involved in this case.

7.  The Plaintiff says that the parties had reached a compromise and subsequently entered into a written settlement agreement that the Defendant was to pay him a settlement sum of HK$1,000,000 for the breach of a tenancy agreement made between the Plaintiff as tenant (sub-tenant) and a limited company, of which the Defendant was a director and shareholder with 20% shareholding, as landlord (principal tenant). It is alleged that the said company was in breach of the said tenancy agreement due to its early termination.

8.  Since the Defendant has failed to pay the said settlement sum to the Plaintiff, the Plaintiff alleges that he was in breach of the settlement agreement and is liable to pay the said sum together with contractual interest to the Plaintiff.

9.  The Defendant does not dispute that he has signed on the settlement agreement. However, he pleads duress, want of consideration, and that the terms of the settlement agreement were too vague as his defence.

The law for striking out defence for failing to give information

10.  First, it is noted that under Order 25, rule 4 of the RDC, if it is the plaintiff who has not appeared at the case management conference or PTR, the Court shall provisionally strike out the plaintiff’s claim. However, there is no similar provision in the RDC providing for striking out a defendant’s defence upon his absence at a PTR.

11.  For Order 25, rule 9 of the RDC, the relevant provisions are as follows:

“9. Duty to give all information at determination of case management summons (O 25, r 9)

…

(2) Subject to paragraph (7), it is the duty of the parties to the action and their advisers to give all such information and produce all such documents as the Court may reasonably require for the purposes of enabling it properly to deal with the summons.

…

(6) If the Court at the determination of the case management summons requires a party to the action or his solicitor or counsel to give any information or produce any document and that information or document is not given or produced, then, subject to paragraph (7), the Court may—

(a) cause the facts to be recorded in the order with a view to such special order, if any, as to costs as may be just being made at the trial; or

(b) if it appears to the Court to be just so to do—

(i) order the whole or any part of the pleadings of the party concerned to be struck out; or

(ii) if the party is plaintiff or the claimant under a counterclaim, order the action or counterclaim to be dismissed on such terms as may be just.

(7) Notwithstanding anything in this rule, no information or documents which are privileged from disclosure are required to be given or produced under this rule by or by the advisers of any party otherwise than with the consent of that party.”

12.  Hence, in the context of the Plaintiff’s intended application for striking out the Defendant’s Defence to be made at the adjourned hearing of 2^nd PTR or CMS, there are two essential requirements to be satisfied before the Court can strike out the Defence, namely, (1) the Court has required the Defendant to give certain information, and (2) that information is not given.

13.  Further, I respectfully agree with the following observations made by Deputy High Court Judge H. Au-Yeung (as he then was) in Asiam Holdings Limited v Shin Kai Lok & Anor, HCA 771/2020, 30 January 2024, [2024] HKCFI 375:

“12. In this regard, the following underlying objectives as provided in Order 1A rule 1 of the Rules of the High Court (Cap.4A, Laws of Hong Kong) (“RHC”) should be borne in mind:

(1) to increase the cost-effectiveness of any practice and procedure to be followed in relation to proceedings before the Court (Order 1A, rule 1(a));

(2) to ensure that a case is dealt with as expeditiously as is reasonably practicable (Order 1A, rule 1(b));

(3) to promote a sense of reasonable proportion and procedural economy in the conduct of proceedings (Order 1A, rule 1(c));

(4) to ensure fairness between the parties (Order 1A, rule 1(d)); and

(5) to ensure that the resources of the Court are distributed fairly (Order 1A, rule 1(f)).

13. The Court can take any step or make any order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A (Order 1B, rule 1(2)(l) of the RHC). Moreover, when the Court makes an order, it may specify the consequences of failure to comply with the order (Order 1B, rule 1(3)(b) of the RHC).

14. Having said that, I am of the view that the Court should take note of the followings when exercising its discretion:

(1) it is a draconian measure to take away a defendant’s right to defend the plaintiff’s claim at the trial. Therefore, the discretion should be exercised carefully;

(2) there should be at least prima facie evidence in support of the assertion that the defendant is no longer interested in contesting the claim;

(3) the Court should take into account the nature of the plaintiff’s claim. For example, whether the plaintiff has made any declaratory claim;

(4) the Court should consider the pleaded case and the evidence adduced by the plaintiff, so as to decide whether it is likely that the plaintiff will be able to prove his case successfully at the trial in the absence of the defendant thereat;

(5) the Court should also consider all the circumstances before coming to the conclusion as to what should the appropriate period be for the defendant to indicate whether he is still minded to contest the plaintiff’s claim. In this regard, it is noted that, pursuant to Order 25 rule 1C of the RHC, if it is the plaintiff who has not appeared at the case management conference or pre-trial review, the Court shall provisionally strike out the plaintiff’s claim, and in such circumstances, the plaintiff may apply to the Court for restoration of his claim before the expiry of 3 months from the date of the case management conference or the pre-trial review, as the case may be. That being the case, I am of the view that, even if the defendant is required to confirm whether he is still minded to contest the plaintiff’s claim, the time limit imposed should not be too short.”

Discussion

14.  First, from the wordings of Order 25, rule 9(6) of the RDC, the request for the Defendant to give information must be made by the Court. Sending a letter to the Defendant by the Plaintiff or his solicitors as suggested by Mr Sin would not be sufficient for the purposes of Order 25, rule 9(6). Hence, taking out a proper application, like what the plaintiffs in the cases of Asiam Holdings Limited (supra) and Air Charter Service (HK) Limited v Mega-Transporter Shanghai Co, Ltd, HCA 974/2018, 5 November 2020, [2020] HKCFI 2863 have done, for an Unless Order by way of Summons may be required.

15.  Further, even on the assumption that the Plaintiff would during the adjournment take out an application for an Unless Order, I am still of the view that adjourning the PTR to a hearing of 2^nd PTR or CMS may not serve any meaningful purpose under Order 1A, rule 1 of the RDC. My reasons are as follows.

16.  All necessary steps for the litigation between the Plaintiff and the Defendant have been taken by them in these proceedings, including respective witness statements have been filed and exchanged by them. It seems that both parties are ready for the trial.

17.  All along, the Defendant was legally represented until 7 October 2024 when he filed and served a Notice to act in person. The Defendant has attended all the previous court hearings by his legal representative. This is the first time that the Defendant has been absent in court. It cannot be said that there is sufficient evidence in support of an assertion that the Defendant is no longer interested in contesting the Plaintiff’s claim.

18.  The 3-day trial has been fixed for 24 to 26 June 2025, ie less than two and half months from the PTR.

19.  The trial of the Plaintiff’s claim is not going to be complicated. If the Defendant shall fail to attend the trial and therefore the Plaintiff is required to prove his claim, it will only involve one factual witness from the Plaintiff, ie the Plaintiff himself. Mr Sin agreed that it would take only half day or one whole day at most for such exercise.

20.  On the other hand, if the PTR is adjourned, the parties would have to attend one extra hearing. If the Defendant shall appear at the adjourned hearing and indicate that he still intends to contest the Plaintiff’s claim, then what the Plaintiff now proposes to do would be a fruitless and costs wasting exercise. Even on the assumption that the Defendant shall not attend the adjourned hearing and that ultimately his Defence is struck out and therefore the trial can be vacated, it seems to me that not much time and costs could have been saved.

21.  Debarring a defendant from defending a claim because of failure to provide information is a draconian one. I agree with H. Au-Yeung J that even if a defendant is required to confirm whether he is still minded to contest the plaintiff’s claim, the time limit imposed should not be too short. A 3-month period, which is the same duration under Order 25, rule 4 of the RDC for the plaintiff to make application for restoration of his claim when the same has been provisionally struck out upon his absence at a case management conference or PTR, was considered by His Lordship as reasonable. However, since the trial of the present case would start on 24 June 2025, it is very likely that the time between the adjourned hearing and the first day of trial would be less than two months.

22.  Judging from the nature of the Plaintiff’s claim, I am of the view that it is neither unjust nor disproportionate to require the Plaintiff to prove his case during the trial, even if the Defendant ultimately chooses not to attend the same.

Order

23.  In the circumstance, I do not agree with Mr Sin that I should adjourn this PTR to a 2^nd PTR or a CMS hearing. I therefore refused the Plaintiff’s application for adjournment with no order as to costs.

24.  The trial is to proceed as scheduled on 24 June 2025, with 25 and 26 June 2025 also reserved.

Mr Oscar Sin, instructed by Huen & Partners, for the plaintiff

The defendant was acting in person and did not appear