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Asm Assembly Automation Ltd And Another v Chan Lo Kwan And Another

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date21 March 2006
Year2006
Judgement NumberHCA7622/1999
Subject MatterCivil Action
CourtHigh Court (Hong Kong)
HCA007622B/1999 ASM ASSEMBLY AUTOMATION LTD AND ANOTHER v. CHAN LO KWAN AND ANOTHER

HCA 7622 /1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7622 OF 1999

______________________

BETWEEN

ASM ASSEMBLY AUTOMATION LTD 1st Plaintiff
ASM TECHNOLOGY SINGAPORE LTD 2nd Plaintiff
and
CHAN LO KWAN 1st Defendant
INTRA-TECH MECHATRONICS LTD 2nd Defendant

______________________

Coram : Before Master Kwan in Chambers

Date of Taxation Hearing : 17 February 2006

Date of Handing Down of Decision : 21 March 2006

________________

DECISION

________________

Background

1. In this action, in essence the plaintiffs’ claim against the defendants is for breach of copyright of the plaintiffs’ design of a device known as an aluminium border. It was alleged that 1st Defendant and several other members of the dramatis personae were originally employed by the plaintiffs, and when they left, they took certain information and/or drawings with them.

2. The action commenced in 1999, and after a period of inactivity, the defendants took out an interlocutory Summons dated 25 August 2004 to strike out the plaintiffs’ action because of their inexcusable delay in proceeding with it, to the prejudice of the defendants. That Summons was fixed for hearing before Deputy Judge Muttrie on 28 January 2005. On that day, the plaintiffs’ counsel sought an adjournment. The plaintiffs told the judge that an important witness had “surfaced”, and the plaintiffs wanted to put in another affirmation.

3. The adjournment was granted by the judge on terms. The Order given was in the following terms:

“ 1. Leave be granted for the 1st and 2nd plaintiffs to file and serve further affidavit in opposition within 7 days from the date hereof;
2. Leave be granted for the 1st and 2nd defendants to file their affidavit in reply, if so advised by counsel within 14 days thereafter;
3. The hearing for the 1st and 2nd defendants’ Summons be adjourned to a date to be fixed in consultation with counsel’s diary with one day reserved;
4. Costs of and occasioned by this adjournment be to the 1st and 2nd Defendants with certificate for 2 Counsels and such to be taxed if not agreed and be paid forthwith.”

4. The taxation of that Order came before me on 17 February 2006. The parties could not agree upon the meaning, definition or effect of the phrase “costs of and occasioned by”, even though this phrase is used practically every day in the courts. Neither side thought it fit to provide me with any authority in support of their respective interpretations of the phrase “costs of and occasioned by”. In order not to waste the hearing, I went on to tax as many items as possible in the circumstances.

5. I gave directions for the parties to supply me with authorities in support of their respective interpretations of the phrase “costs of and occasioned by” within 14 days. I indicated that having considered their authorities, I would decide on Items 5, 6, 45 and 46 of the Bill and then hand down a written decision. As the receiving party had argued that the skeleton submissions had to be substantially re-done for the adjourned, I asked the receiving party to “prepare a chart showing the differences, if any, in the skeleton submissions for 28 January 2005 and 28 September 2005.”

6. It should be recalled that in the action, the defendants alleged that no question of infringement arose as they had separately and independently developed their own project for the aluminium bonder. Unfortunately, due to passage of time, 3 key members of the defendants’ development team would not now be available as witnesses. These were : Mr Tan who passed away in 2003; Mr Yan (“Yan”) who had emigrated to Australia in 2001; and a Mr CC Chan whom the defendants had lost touch with since 1999. The defendants argued that they were prejudiced as a consequence, and took out the Summons to Strike out the plaintiffs’ claim. The Summons was scheduled to be heard before Deputy Judge Muttrie on 28 January 2005. On that day, the plaintiffs applied for an adjournment on the basis that fresh information had come to light in relation to Yan, one of the so-called “missing witnesses”. The adjournment which was granted, but the plaintiff was ordered to the bear costs I was called upon to tax.

7. After the adjournment, and in compliance with Judge Muttrie’s Order dated 28 January 2005 the paying party (the plaintiffs) filed the 2nd Affirmation of Fung Shu Kan, the Financial Director of P1. In essence that affirmation said that Yan was previously employed by the plaintiff; Yan’s work did not involve the development of aluminium bonders; but records showed that Yan’s wife, another former employee of the plaintiff did have access to the technical drawings of the aluminium bonders. The Affirmation concluded that it could not have been possible for the defendants to have independently developed their own aluminium bonders. The other affirmation filed that day (of Ching Lit Mei Assistant solicitor of plaintiffs’ solicitors) was for the sole purpose of adducing the English translation of a document exhibited to Mr Fung Shu Kan’s 2nd Affirmation.

8. On 7 March 2005 the receiving party (the defendants) filed the 3rd affirmation of 1st Defendant in response to Mr Fung Shu Kan’s 2nd Affirmation. After that the plaintiffs filed 2 more affirmations (Liu Chou Kee Peter 14 May 2005) and (Leung Wing Kin Simon 14 May 2005). It is not readily apparent how the last 2 affirmations come within Deputy Judge Muttrie’s Order dated 28 January 2005 but that objection was not taken before me.

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