MACPI GROUP (HK) LTD v. YAP BEE HONG CHRISAND

DCCJ 5593/2007 and DCCJ 605/2008 (Consolidated)

DCCJ 5593/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5593 OF 2007

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BETWEEN

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DECISION

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1.  The plaintiff, Macpi Hong Kong, applies for leave to appeal my judgment of 29 July 2011.

2.  In the draft grounds of appeal, Mr Lee, counsel for plaintiff, repeatedly criticised me for ignoring the rules of district court on pleadings and evidence.  He pointed out that I have wrongly allowed the defendant Miss Yap to refine her pleadings and witness statements in her evidence at the trial.  Further, I was wrong in disallowing the plaintiff’s application to file a 5^th witness statement of Mr Luca Mosso (PW2) on the 6^th day of trial after the close of the plaintiff’s case during the cross-examination of the defendant.  The purpose of filing the 5^th witness statement of Mr Mosso was to rebut the evidence of Miss Yap disclosed in her cross-examination by Mr Lee.

3.  Mr Lee asserted that by wrongly disallowing the 5^th witness statement of Mr Mosso exhibiting a written letter of Mr Armando Raccagni, I have breached the rules of natural justice.  Mr Lee further accused me of being bias and unfair.

4.  On the plaintiff’s application to tender the 5^th witness statement of Mr Mosso after the close of the plaintiff’s case on the 6^th day of the trial, I delivered a ruling with reasons on the same day.  I do not wish to repeat them here save that the application was without merits and against order 38 of the rules of district court.  Mr Lee informed the court at the time the plaintiff had no intention to re-open its case and recall Mr Mosso to give evidence disclosed in his 5^th witness statement.

5.  On the ground that I have wrongly allowed the defendant to give evidence which amplified the defendant’s pleadings and witness statements; the Hong Kong Civil Procedure 2012 notes on order 38, 38/2A/10 provides that “Note that a witness may with the leave of the court orally (i) amplify the witness statement, and (ii) give evidence in relation to new matters which have arisen since the witness statement was served on the other party …..”  To minimize the need for extensive pleadings, the court has a general discretion to allow a witness to clarify his/her witness statements even if it may be beyond the contents of his/her witness statements, if supported by good reasons (see 38/2A/3 at page 755 of the Hong Kong Civil Procedure 2012).

6.  Sometimes, the evidence of a witness in cross-examination may not appear in his/her witness statements, it is not expected that he/she would have anticipated all the questions he/she may be asked in cross-examination.  On the other hand, the plaintiff’s counsel should be in a good position to assess the evidence he wished to elicit from the defendant’s witness in cross-examination.  The civil procedure rules do not allow a party to re-open his case and lead in fresh evidence after the closure of his case just because he does not like the opposing party’s evidence at trial, the court’s discretion to allow the re-opening of a plaintiff’s case after closing should only be exercised in very special circumstances.  In the present case, the plaintiff sought to lead in fresh evidence by a further witness statement without re-calling the witness.

7.  Mr Lee further asserted in his grounds of appeal on the defendant’s counterclaim that I have wrongly excluded Mr Mosso’s 5^th witness statement exhibiting a letter from Mr Armando Raccagni, and I have misconstrued Mr Mosso’s evidence on the defendant’s duties and responsibilities and whether the defendant was entitled to receive commissions for accounts cultivated by her or passed to her by Mr Mosso.

8.  The record of Mr Mosso’s evidence showed he had admitted under cross-examination that he did not fully recited to Miss Yap her duties and responsibilities when she was employed.  It was also his evidence that Miss Yap was the only staff in Hong Kong who was entitled to receive commission on accounts either cultivated by her or passed to her by him.

9.  This is an action on employment dispute based on an employment contract, I cannot detect any public interest in the present case.  I find the plaintiff has failed to show any merits in the draft grounds of appeal, I am not satisfied a reasonable prospect of success in the appeal has been shown.  For the aforesaid reason, leave to appeal is refused.

10.  The plaintiff’s application for stay of execution pending appeal under order 59 r 13 is dismissed.  The defendant should not be deprived of the fruits of the litigation.

11.  Costs of the application for leave to appeal and the hearing be borne by the plaintiff to be taxed if not agreed.