TSUI KOON WAH v. LAM KING YUEN AND OTHERS

HCA 890/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 890 OF 2003

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R E A S O N S   F O R   D E C I S I O N

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1.  At the end of the pre-trial review hearing on 4 September 2006, the following directions were given:-

(a)  the plaintiff is to lodge with court and serve the indices for:-

(1) trial bundles for the use of the judge and jury at trial;

(2) trial bundles for the use of the judge only at trial, within 28 days from today;

(b) the pre-trial review hearing is adjourned to a date to be fixed (the adjourned hearing date not earlier than 28 days from today) (estimated hearing time not more than half an hour).

2.  The first pre-trial hearing took place on 30 November 2004.  It has been adjourned and restored several times since then.  At the end of the pre-trial review hearing on 19 May 2006, several directions were given.  The one concerning trial bundles became the subject-matter of dispute at the hearing on 4 September 2006.

3.  My record of that direction was that the parties were to attempt to agree on the trial bundles and, failing agreement, they were to prepare their respective indices of trial bundles within 28 days after service of their respective further witness statements.

4.  The defendants’ understanding of that direction was recorded in the letter dated 3 August 2006 from their solicitors (which also enclosed the proposed indices for trial bundles):-

“… directions given on 19^th May 2006 that:-

(a) Within 28 days of the filing and service of the supplemental witness statements, the parties shall try to agree … on the content of the Hearing Bundle.

(b)  If no agreement can be reached, both parties shall prepare their Bundle Index for the Court’s perusal”.

5.  The plaintiff’s understanding, on the other hand (as recorded in his letter dated 16 August 2006) was:-

“… the Court only directed the parties to try to agree on the contents of the index of the Documents Bundle within 28 days and no more”.

6.  The directions given on 19 May 2006 were not recorded in a drawn-up order.

7.  It is unnecessary to determine what the above direction truly was.  This is because, at the hearing on 4 September 2006, the plaintiff argued in effect that trial dates should be fixed first before the trial bundles (or their indices) should be prepared.

8.  Even assuming that no previous direction in this regard has been given, I do not agree with that view.  First, trial dates should only be given when an action is ready for trial.  Parties to a litigation may differ as to what documents should (or should not) be included in the trial bundles.  As far as possible, any such differences should be resolved before trial; this is even more important where the action will be tried by jury (as in this action).

9.  Further, the length of a trial depends on various matters; of those, two which often affect the length of the trial are the number of witnesses which may testify and the number of documents which may be referred to.

10.  The last-mentioned matter is particularly important to this action.  There were only 37 documents which the defence considered to be relevant at trial.  The plaintiff’s lists of documents referred to more than 460 documents.  The plaintiff has not specified how many of those will be referred to at trial, although on 4 September 2006 he indicated that not all would be.  At least at one stage he stated he wished to adduce documentary evidence consisting of about 900 to 1,000 pages (para. 47, Decision dated 29 January 2005).  In any event, on 4 September 2006, he took the view that much more than 37 documents should be referred to at trial.

11.  Finally, where an action is tried by jury, as a general rule, only documents which are properly admissible evidence should be placed before it.  There is therefore an additional need to ensure the trial bundles in this action should meet that requirement.

12.  By reason of the above matters, I found that whether trial dates should be fixed should only be considered after the trial bundles have been prepared.