LAU SUK HAN LORETTA v. LI FUNG MING KRIZIA

HCPI 859/2016

[2023] HKCFI 121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO 859 OF 2016

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BETWEEN

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DECISION

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P’s summons filed on 25/10/2022

1.  By her summons filed on 25 October 2022, the plaintiff applies for leave to adduce supplemental witness statements of herself and 3 other existing witnesses as well as a witness to be identified.

2.  The 1^st defendant does not take issue as to the adducing of the supplemental witness statement of the plaintiff.

3.  The 1^st defendant opposes the other supplemental witness statements on 2 main grounds: (i) delay and (ii) lack of probative value and to certain extent personal opinion.

4.  As to delay, this is indisputable and not non-substantial. Counsel for the plaintiff in his submissions had to accept that. The plaintiff’s solicitors tendered explanation for the delay by affidavit dated 24 October 2022. Regardless of whether or not such delay was intentional, I do not find the explanation to be compelling and the entire period of delay fully justifiable.

5.  That said, considering the current stage of proceedings in the present action, the prejudice to the 1^st defendant in terms of case management as a result of the delay could be adequately compensated by way of costs. As the plaintiff’s counsel acknowledges that the plaintiff is seeking indulgence from the court, an adverse costs order even in the event of success of her application will be inevitable.

6.  As to the substance of the proposed further witness statements of the existing 3 witnesses, they certainly contain some repetitions of what were already covered by their existing witness statements. I can also see the basis for the argument that some of the proposed evidence may have little probative value. Yet the same may be said even in respect of parts of their existing witness statements. In some other respects, the witnesses are straddling across personal factual observation and personal opinion evidence, the latter of which may be said to be strictly inadmissible.

7.  That said, the substance of each of these supplemental witness statements, and indeed the existing witness statements, was woven in such a way that any issue of inadmissibility, if taken at all, ought to be taken with reference to the specific paragraphs and sentences. The issue of probative value always remains open to argument at the trial. Pragmatically, the question in these circumstances is whether allowing the adducing of the really new evidence covered by the supplemental witness statements which may fall foul of the admissibility or probative value test would unreasonably prolong the trial. At this stage, it is not readily apparent that the trial would be prolonged out of proportion.

8.  Therefore, subject to terms, I am prepared to allow these supplemental witness statements to be adduced.

9.  The same however cannot be said about the witness statement of the unidentified witness. What is proposed is a so-called draft witness statement with content all typed out for an appropriate witness to be identified who would be willing to endorse and sign the document as his or her own evidence. Such a so-called draft witness statement can never be accepted as the proposed evidence of the witness, when he or she is not even identified. It is the least expected for the legal representative to come to make such an attempt before the court. As such, the so-called draft witness statement will not even enter the consideration of the court for the purpose of the application. Likewise, the court cannot be expected to give blank leave to file a witness statement for a particular purpose. When an application with a signed or a draft witness statement to be signed is properly before the court, it will be considered. Not when it is in its current form.

10.  I would therefore dismiss the application for leave in respect of the proposed witness statement of such a witness to be identified.

11.  In respect of the plaintiff’s summons, the following order is made:

(1) Leave to the plaintiff to adduce the supplemental witness statements of the plaintiff, Luk Hiu Ming, Wong Fook Lam and Lai Chun Yu as per the drafts annexed to the affidavit of Sung Priscilla Sze Ying, but without prejudice to the right of the 1^st defendant to take any issue of admissibility and to submit on the probative value in respect of any specific parts of the statements at the trial;

(2) For the avoidance of doubt, the qualification set out in (1) above applies to the witness statements of the same witnesses previously adduced;

(3) The application for leave to adduce the witness statement of the unidentified witness as per draft annexed to the affidavit of Sung Priscilla Sze Ying is dismissed;

(4) Costs of and occasioned by the plaintiff’s summons be to the 1^st defendant in any event, to be taxed, if not agreed.