CIVIC LTD v. 余綺妙 AND OTHERS

HCA225/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 225 OF 2011

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REASONS FOR DECISION

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Introduction

1. The trial in this case is to commence on 7 August 2013 with an estimated length of 5 days.

2. On 18 June 2013, the plaintiffs filed their 3^rd List of Documents disclosing the following documents:

(a)  copy passports of Rose Lee Dare and Yolanda Wong Lum  (“Passports”);

(b)  three colour photos of the plaintiff’s witness Rose Lee Dare and others (“Photos”);

(c)  newspaper cuttings from Apple Daily in respect of the present action dated 13 May 2013 (“Cuttings”).

3. At the hearing on 25 June 2013 in respect of the 1^st, 3^rd and 4^th defendants’ application to amend their respective Defence, Mr Lam, counsel for the 1^st, 3^rd and 4^th defendants, raised query over the above late discovery by the plaintiffs.

4. In paragraphs 23-24 of my Reasons for Decision dated

5. On 2 July 2013, the plaintiff issued a summons (“Summons”) for the following reliefs:

(a)  leave to serve the supplemental witness statement of Rose Lee Dare as per the draft annexed thereto within 21 days;

(b)  costs of the application be to the 1^st, 3^rd and 4^th defendants.

6. On 5 July 2013, the plaintiff filed the affirmation of their solicitor Mr Luk Wing Hung (“Mr Luk”) in support of the Summons (“Affirmation”).

7. At the hearing of the Summons before me on 10 July 2013 (“Hearing”), Mr Yip, counsel for the plaintiff, submitted a revised draft of the supplemental witness statement of Rose Lee Dare which corrected some clerical errors in the draft annexed to the Summons (“Draft Statement”). I note that although the Passports and the Photos (but not the Cuttings) were annexed to the Draft Statement, there is no formal application to seek leave of the court to file, serve and rely on the late discovery for use at the trial.

8. At the Hearing, the 1^st, 3^rd and 4^th defendants produced the 2^nd affidavit of their solicitor Joseph Tsang (“Mr Tsang”) dated 9 July 2013. Mr Yip did not have any objection to the use of such affidavit by the 1^st, 3^rd and 4^th defendants.

Lateness of the application

9. By the Affirmation, Mr Luk explained that on 4 May 2013 on the advice of counsel the plaintiff’s solicitors sent an email to the plaintiff’s witnesses Rose Lee Dare and Yolanda Wong Lum in the United States to ask them for (a) copies of their passports that would evidence their return to Hong Kong between 1967 and 2008, and (b) photographs that would depict their presence at the subject property.

10. Mr Luk said that since Rose Lee Dare and Yolanda Wong Lum were aged 84 years and 64 years respectively, and the incidents happened some time ago, it took them some time to locate the requested documents. After some exchange of emails, the plaintiff’s solicitors received copies of the Passports and the Photos on/about 11 and 27 May 2013 respectively. The plaintiff’s solicitors collated the Cuttings and finalised the plaintiff’s 3^rd List of Documents on 18 June 2013. Soon after making such discovery, the solicitors for the 1^st, 3^rd and 4^th defendants raised objection. 

11. Mr Luk claimed “the disclosure of the [Passports and Photos] was made at the first reasonable opportunity”. But I agree with Mr Lam that the Affirmation does not offer any good reason for the delay in making discovery of the Passports and the Photos at this late stage. 

12. As early as in September 2011, the plaintiff in paragraph 12 of each of their Replies to the 1^st, 3^rd and 4^th defendants’ Defences already pleaded that since 1969 and from time to time until 2008 Rose Lee Dare returned to Hong Kong from San Francisco and visited the 1^st defendant at the subject property. Further, the 1^st, 3^rd and 4^th defendants’ pleadings were filed in April 2011, and their witness statements were filed in September 2012. Any joinder of factual issues over Rose Lee Dare’s visits to the subject property would have been apparent by then.

13. The need, or indeed the duty, to make discovery of all relevant documents in relation to the matter of Rose Lee Dare’s visits to Hong Kong and to the subject property, in my view, would have been obvious since 2011 and at the latest by 2012, ie long before the matter was set down for trial. I note that the need to make timely discovery of all relevant documents was not lost on either the plaintiff or their legal representatives since the plaintiff filed their 2^nd List of Documents on 17 September 2012. Yet in their Listing Questionnaire filed on 24 October 2012 just before the case was set down for trial, the plaintiff confirmed that discovery and witness statements were complete.

14. The Passports and the Photos are not newly created documents. Proper attention to discovery during the course of the present action would have caused these documents to be disclosed long before June 2013. It is a mockery to say that the disclosure of the Passports and the Photos was made at the first reasonable opportunity. The fact that the plaintiff and/or their legal representatives chose to leave it until a late stage (ie after the Pre-Trial Review on 29 April 2013) to explore the need to make discovery of documents which could and should have been disclosed much earlier certainly does not make the late discovery one that is “made at the first reasonable opportunity”.

15. I am persuaded that the reason offered for the lateness of the new discovery, and hence the lateness of the Draft Statement, was wholly unsatisfactory. The new discovery was patently and unjustifiably late.

Late discovery

16. The plaintiff did not issue any inter partes application to seek leave of the court to adduce and rely on the newly discovered documents at the trial. But as explained in Liu Chen v Chan Poon Wing & anor HCPI779/2006 (unreported, 7 October 2009) at para.24, where discovery is given just before trial, it is impermissible for the litigant giving such discovery to do so under the guise of voluntary discovery without seeking leave of the court to give further discovery out of time.

17. In respect of the Passports and the Photos, the concern expressed in the above paragraph is mitigated by the Summons which seeks leave of the court to serve the Draft Statement to which the Passports and the Photos have been annexed.  I therefore propose to deal with the Passports and the Photos in the discussion on the Draft Statement below.

18. However, as pointed out in paragraph 5 above, there is no application for leave of the court to adduce and rely on the Cuttings at the trial. The Cuttings also do not feature in Mr Yip’s written submissions. But in fairness, the Cuttings were only available in mid-May 2013.

19. At the Hearing, Mr Yip confirmed that the plaintiff would not adduce the Cuttings at the trial as documentary evidence as to the truth of their contents. This is plainly correct in view of the strictures in Jademan (Holdings) Ltd v Francis, Leung Pak-to & ors [1989] 2 HKLR 151, which was followed in 王鐵英訴方展禹及另一方 [2006] 3 HKLRD 547. Mr Yip informed the court that he would only use the Cuttings to cross-examine the witnesses for the 1^st, 3^rd and 4^th defendants. It is up to Mr Yip to decide how he wishes to conduct his cross-examination, but what reporters say about events generally has no evidential value.

Draft Statement

20. As explained in Liu Chen at para.55 (see also Kinetics Medical Health Group Company Limited & ors v Dr Tse Ivan Cheong Yau HCA1115/2010 (unreported, 8 May 2013) at para.49), whether a court will allow a late application for further discovery (and for that matter a late witness statement that purports to explain documents newly discovered at a late stage of the proceedings) is a balancing exercise and the considerations of the court are largely three-fold:

(a)  the merits of the proposed application, ie whether the application if granted will assist the court in securing “the just resolution of disputes in accordance with the substantive rights of the parties” (see Order 1A rule 2(2) of the Rules of the High Court (“RHC”));

(b)  the presence or absence of any real prejudice to the other party;

(c)   any conscious flouting of rules of court, practice directions and/or case management timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant.

21. Mr Luk said in the Affirmation that the Passports and Photos raised no new issue and that it was known from the statements given by the plaintiff’s witnesses last year that they had returned to Hong Kong from time to time, hence no prejudice would be caused to the plaintiff. Mr Yip submitted it was necessary to adduce “relevant real evidence” to assist the court to adjudicate on the real controversy between the parties.

22. In respect of the Passports, Mr Lam submitted that subject to the following caveats, the 1^st, 3^rd and 4^th defendants in principle had no objection to the production and use of the Passports at the trial by the plaintiff:

(a)  possible prejudice to the trial dates;

(b)  inspection of the original Passports and if necessary to challenge the authenticity thereof.

But Mr Lam went on to say that since it was unclear whether the 1^st, 3^rd and 4^th defendants would need to adduce evidence in reply if there were any issue of authenticity, the best course would be to decline leave for the plaintiffs to adduce the Passports at the trial.

23. Whilst it is true there is no good reason for late discovery of the Passports, there is no doubt such documents are relevant to the contested issues between the parties, ie whether Rose Lee Dare returned to Hong Kong from time to time and visited the 1^st defendant at the subject property. I am persuaded that given the prima facie relevance, and the need for the court to determine the real controversy between the parties at trial, the Passports should not be excluded simply on the basis that they might lengthen the trial. After the CJR, the court is not powerless to deal with such risk. As explained in Liu Chen at para.59,

“As I have said, late applications should be rare occurrences after the CJR as a result of proactive case management and short-scheduling techniques adopted by the court prior to the assessment of damages. But should such rare event happen (as in the present case) and should the court even more rarely favour the applicant with the indulgence sought, the court will be astute to draw on the full armoury of powers in the RHC under the CJR to ensure that the respondent will not be prejudiced and that the applicant is kept on the straight and narrow with a tight timetable of confined steps to be taken. ……”

24. The true question is (a) whether there is a real issue as to the authenticity in respect of the Passports, and (b) whether the 1^st, 3^rd and 4^th defendants have reasonably sufficient time and opportunity to properly answer such documents.

25. First of all, this question necessarily hinges on inspection of the original Passports by the 1^st, 3^rd and 4^th defendants. But it was disappointing to be informed by Mr Yip at the Hearing that notwithstanding awareness of the existence of the Passports since May 2013, they were still not available for inspection and would not be so available until 7 days after the Hearing. I am quite sure that modern courier service is more efficient than what was proposed.  Given the time pressure on the 1^st, 3^rd and 4^th defendants generated by the plaintiff’s late discovery compounded by the fact that the currently available copies of the Passports are practically illegible, fairness dictates that their legal representatives be allowed to inspect the original Passports as early as possible so that they can take proper instructions to (a) formulate the 1^st, 3^rd and 4^th defendants’ stance as to whether to challenge authenticity of such documents, and (b) marshal documentary and witness evidence in response.

26. Secondly, pending such inspection of the Passports and the instructions to be obtained from the 1^st, 3^rd and 4^th defendants (which understandably can only be properly done after such inspection), it is unknown at this stage whether the 1^st, 3^rd and 4^th defendants will be able to sufficiently investigate and marshal evidence to challenge authenticity of the Passports and/or to give proper explanations. For one thing, it is unknown whether there are relevant witness(es) and if so, whether such witness(es) will be available, so whether the plaintiff’s reliance on the Passports will pose real prejudice to the 1^st, 3^rd and 4^th defendants cannot be ascertained as yet. It is therefore necessary to preserve their position on these matters whilst they carry out investigations. It is also therefore appropriate to reserve the admissibility of (a) the Passports and (b) the part of the Draft Statement that deals with the Passports until the 1^st, 3^rd and 4^th defendants have a reasonable opportunity to look into these matters.

27. I have therefore at the Hearing granted the orders in paragraph 36 below to address the above concerns.

28. In respect of the Photos, Mr Lam in his written submissions did not say these documents were irrelevant to the issues in dispute at the trial. Rather, his objection focused on case management considerations. Mr Lam said that if leave were granted to the plaintiff to adduce the Photos at the trial, the 1^st, 3^rd and 4^th defendants would inevitably need to file and serve further and/or supplemental witness statement(s) to deal with the new discovery. Since this would lengthen the trial, Mr Lam argued that the best case management course would be to decline leave for adducing the Photos.

29. Whilst the court is jealous to encourage timely and effective case management, Order 1A rule 2(2) of the RHC makes clear that in giving effect to the underlying objectives, the court shall always recognise that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties. As explained above, the CJR has given the court an armoury of case management powers to ensure that unnecessary lengthening of trial time will be minimised. The Photos should not be shut out on such basis.

30. Indeed, it was said in Mr Tsang’s 2^nd affidavit that the 1^st defendant recognised a Chinese male shown in the Photos to be her neighbour and whom she called “表叔”. This gentleman has been located, and there are ongoing enquiries as to the circumstances under which the Photos were taken. At the Hearing, I granted the orders in paragraph 36 below to allow the 1^st, 3^rd and 4^th defendants to adduce witness evidence in reply in order to address the above concerns.

31. In the Draft Statement, it was said that Rose Lee Dare kept some expired passports that showed the dates of her arrival at and departure from Hong Kong over the years, and that she and Yolanda Wong Yum visited Hong Kong in October 2004. It was further said that Rose Lee Dare paid a visit to the 1^st defendant at the subject property, and the Photos were taken of her and others at the subject property. Mr Luk said the Draft Statement did no more than exhibit the Passports and the Photos taken at the subject property in October 2004 and to identify the persons in the Photos, so it did not raise any new issue and the defendants would not be prejudiced.

32. In light of my conclusions above in respect of the Passports and the Photos, I do not see any sufficient reason to refuse leave for the plaintiff to file and serve the Draft Statement save and except that the admissibility of such part of the Draft Statement that deals with the Passports should be reserved. This is significant because the 1^st, 3^rd and 4^th defendants have yet to ascertain how they are to respond to the Passports. But since the plaintiff is to file/serve the supplemental witness statement of Rose Lee Dare late in the day (ie long after the case has been readied for trial), there should not be further shifting of goalposts and the plaintiff should commit themselves to the case they now present to the court. Any further laxity will be unfair to the 1^st, 3^rd and 4^th defendants. Therefore, as a matter of procedural fairness and to ensure timely progress of the trial, any leave granted to the plaintiff to rely on the Draft Statement (subject to the caveat in relation to the admissibility of such part that deals with the Passports) should be subject to appropriate procedural constraints.

33. In view of the lateness of the Draft Statement which necessarily takes into account up to date matters, I see no basis for the plaintiff to further amplify on the matters raised in the Draft Statement and/or on the Passports and the Photos when their witnesses give evidence at the trial. To bolster such limitation, I exercise the power under Order 38 rule 2A(7)(b)(i) of the RHC to direct that no leave shall be granted for Rose Lee Dare and/or Yolanda Wong Lum (if either or both of them are called as witness(es) at the trial) to amplify on the matters raised in the supplemental witness statement of Rose Lee Dare as per the Draft Statement, including the Passports and the Photos.

34. In coming to the above views, I have carefully taken into account Mr Lam’s concern that any indulgence granted in favour of the plaintiff’s late application may have an adverse effect on the trial schedule. He reminded that some witnesses would be English-speaking and some would be Chinese-speaking such that English-Chinese translation might be time-consuming.  Further, at the Pre-trial Review, Mr Lam also alluded to the need to accommodate the 1^st defendant who has a strong accent, is somewhat hard of hearing, and speaks slowly. Mr Lam feared that the plaintiff’s late application might undermine the 5-day trial schedule.

35. However, there should be no derailing of the milestone trial dates with the order made in paragraph 36 below at the Hearing. Although there is always an element of uncertainty when witnesses give evidence at trial, I have as far as possible imposed tight case management directions to keep the risk of overrunning to a minimum. At the Hearing, Mr Yip informed the court there might be some savings in time since Yolanda Wong Lum would not attend the trial as witness for the plaintiff since she suffered adverse health condition recently.

Conclusion

36. In the circumstances, I granted the following orders at the Hearing:

(a)  the plaintiff shall on or before 4:00pm on 15 July 2013 produce the original of the Passports for inspection by the solicitors and/or counsel for the 1^st, 3^rd and 4^th defendants (“Inspection”);

(b)  at the time of the Inspection, the plaintiff shall produce to the solicitors for the 1^st, 3^rd and 4^th defendants the following:

(i)   a written schedule of all dates of entries into and departures from Hong Kong as shown in the Passports with cross-references to the corresponding pages of the Passports;

(ii)   clear and legible copy of the Passports.

(c)   within 7 days after the Inspection, the 1^st, 3^rd and 4^th defendants (if so advised) shall file and serve Notice of Objection as to Authenticity in respect of the Passports;

(d)  subject to the plaintiff complying with (a) and (b) above, and without prejudice to any right that the 1^st, 3^rd and 4^th defendants may have to challenge the authenticity of the Passports, retrospective leave be granted to the plaintiff to file and serve their 3^rd List of Documents filed on 18 June 2013;

(e)   subject to any objection by the 1^st, 3^rd and 4^th defendants as to the authenticity of the Passports and the admissibility of paragraph 1 of the supplemental witness statement of Rose Lee Dare to be filed and served, leave be granted to the plaintiff to file and serve the supplemental witness statement of Rose Lee Dare as per the Draft Statement within 7 days from the Hearing, ie on or before 17 July 2013, and such supplemental witness statement shall be accompanied by its statement of truth;

(f)   no leave is granted for Rose Lee Dare (if called as a witness at the trial) to amplify on the matters raised in her supplemental witness statement to be filed and served pursuant to (e) above and on the Passports and the Photos exhibited to her supplemental witness statement;

(g)  leave be granted to the 1^st, 3^rd and 4^th defendants (if so advised) within 14 days thereafter, ie on or before 31 July 2013:

(i)   to file and serve further or supplemental witness statement(s) as to fact in reply, and each such further or supplemental witness statement (if any) shall be accompanied by its statement of truth;

(ii)   file and serve supplemental List of Documents making discovery of any documents in reply, and serve copies of the documents specified in Schedule 1 Part 1 therein;

(h)  for the avoidance of doubt, the admissibility of the Passports and paragraph 1 of the supplemental witness statement of Rose Lee Dare to be filed and served pursuant to (e) above be reserved for consideration and, where appropriate, determination at the trial.

37. I hereby also direct the 1^st, 3^rd and 4^th defendants to forthwith file and serve Mr Tsang’s 2^nd affidavit dated 9July 2013.

38. Since the plaintiff by the Summons seeks an indulgence from the court, there is no reason why costs should not be payable to the 1^st, 3^rd and 4^th defendants. Indeed, the plaintiff recognises this in the proposed provision for costs in the Summons. At the Hearing, I ordered that costs of and occasioned by the Summons be paid by the plaintiff to the 1^st, 3^rd and 4^th defendants to be taxed if not agreed, and the 1^st, 3^rd and 4^th defendants’ own costs be taxed in accordance with Legal Aid Regulations.

Postscript

39. At the close of the Hearing, Mr Yip informed the court there might be a need for Rose Lee Dare, who is an elderly lady of some 84 years, to give evidence by video-link. However, the fact that she is an elderly lady living in the United States is a known matter since the commencement of the present proceedings. All along, it was expected that she would attend the trial to give evidence in person. This was the understanding at the Pre-trial Review on 29 April 2013. There has been no application to date for video-link evidence for the purpose of the trial which is due to commence on 7 August 2013. Mr Yip made no mention of this at the last hearing before me 2 weeks ago on 25 June 2013. His allusion at the Hearing to the possibility of Rose Lee Dare not coming to give evidence in person at the trial is a surprise to both the court and the 1^st, 3^rd and 4^th defendants.

40. However, there is no proper application before the court for use of the Technology Court pursuant to Practice Direction 29. Therefore, I shall not say any more on this. But as of today the milestone trial is set to commence on 7 August 2013 at 10:00am.