DELCO PARTICIPATION B.V. v. HWH HOLDINGS LTD

HCA 2943/2015

[2021] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2943 OF 2015

________________________

________________________

AND

HCA 3040/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3040 OF 2015

________________________

________________________

AND

HCA 2939/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2939 OF 2016

________________________

________________________

(Heard together)

________________________________________

D E C I S I O N O N

L E T T E R   O F   R E Q U E S T

________________________________________

A.   Introduction

1.  By three summonses dated 17 August 2020 (together “Application”), Delco applies for the issue of a letter of request to the judicial authority of the Netherlands for the examination of Mr Stephan van Ooijen (“SVO”), who resides in the Netherlands.

2.  At the CMC on 28 August 2020, I gave directions for the application to be dealt with by way of paper submissions.

3.  Delco filed submissions on 23 October 2020.  Fang/HWH and CT/CTHK both filed submissions on 6 November 2020.  Delco filed reply submissions on 18 November 2020.

4.  Unfortunately, by summons dated 18 November 2020, Delco also applied for leave to adduce further evidence in support of the Application.  This gave rise to a further round of paper submissions, as directed by me on 4 December 2020.

5.  Those submissions were filed on 11 and 15 December 2020.

6.  The trial of the actions is fixed to commence on 12 July 2021, with 15 days reserved.

B.   Broad Outline

7.  Delco submits that the following points weigh heavily in favour of granting the Application:

(1)  SVO has been asked, but has firmly refused, to attend trial physically in Hong Kong or by way of video-link.  However, he cannot be procured by Delco to attend the trial.

(2)  SVO is a witness who can give material evidence for the purpose of these actions.

(3)  The Dutch law evidence adduced by Fang demonstrates that SVO can be cross-examined by parties in the Dutch court in a way similar to this jurisdiction.

(4)  There has been no unreasonable or inordinate delay on the part of Delco in taking out the application.  There is no real prejudice caused to Fang/HWH or CT/CTHK which cannot be compensated in costs.

8.  Fang/HWH submit that the Application should be dismissed on the grounds that:

(1)  Obtaining SVO’s evidence by the letter of request procedure is not necessary or in the interest of justice.

(2)  Delco has failed to show that SVO cannot reasonably be expected to come to Hong Kong, or that it has made reasonable attempts to obtain his evidence in other ways.

(3)  It is uncertain that an examination in the Netherlands will enable a full-fledged cross-examination to be conducted.

(4)  Delco’s inordinate delay in taking out the summonses causes unreasonable disruption and prejudice to Fang/HWH’s trial preparation which cannot be compensated by costs.

9.  CT/CTHK submit that it is not necessary for the purposes of justice within the meaning of RHC Order 39 rule 1(1) for the Application to be granted because:

(1)  Delco has failed to show that CT/CTHK would not be deprived of the opportunity of a full-fledged cross-examination of SVO. Indeed, to suggest that there could be full cross-examination in the Netherlands is inconsistent with the reason for SVO’s refusal to come to Hong Kong being that he is concerned about being cross-examined.

(2)  If Delco is right that SVO will be subject to cross-examination in the same rigour, with the same serious consequences for giving false answers, then SVO’s fundamental premise for refusal to come to Hong Kong would be false.  This should have been pointed out to SVO to persuade him to come to Hong Kong to give evidence.

(3)  The adoption of the letter of request procedure would also result in other prejudice, including the additional time and expense that CT/CTHK would have to expend in instructing Dutch lawyers to conduct the cross-examination; prejudice stemming from SVO’s advantage in not having to file witness statements at the same time as other witnesses; and the disruption and inconvenience arising from the truncation of the evidence into two jurisdictions.

10.  Before dealing with the detail of the arguments, it is helpful to deal with the application for further evidence.

C.   New Evidence

11.  The new evidence is said to be necessitated by matters raised in the written submissions of the various defendants to the actions.  In particular, reference is made to the allegation that had SVO known that he might still be subject to cross-examination when examined in the Netherlands pursuant to the letter of request procedures, he might have changed his mind as to whether he was prepared to attend the trial whether physically in Hong Kong or by way of video-link.

12.  Whilst Delco takes the view that submission is misconceived, its solicitors have written to SVO (via his legal representative) to seek confirmation as to whether SVO is willing to attend the trial in Hong Kong either physically or by way of video-link, on the understanding that the letter of request procedure might give rise to cross-examination in the Dutch court on all issues upon which the Hong Kong proceedings touch.

13.  SVO (through his representative) has indicated that some discussions continue as part of the ongoing discussions first raised in October 2019 prior to the application to the Enterprise Chamber, Amsterdam Court of Appeal. Specifically as to SVO’s latest position on attending trial, SVO was said to be willing to give a witness statement limited to the issue of the existence of the 2010 Agreement (as defined in the pleadings) and to attend trial via video-link, but subject to the condition that any cross-examination via video-link would be limited to that specific issue only.

14.  Therefore, it is said by Delco in the new evidence that the position remains as previously explained in evidence, namely that SVO is not willing to appear before the Hong Kong Court (whether physically or by video-link) to be subject to cross-examination on all of the issues upon which the Hong Kong proceedings touch.

15.  Fang/HWH submit that the explanation seeking to provide justification for the new evidence is flawed.  The burden is on Delco to show that SVO is unwilling to attend trial, physically or by video-link, and the need to consider video-link was always known.  Fang/HWH analyse Delco’s evidence as showing that Delco has failed to discharge the burden; SVO was not opposed to giving video-link evidence per se, but simply did not want to be cross-examined.  Therefore, the points raised by Fang/HWH in submissions were not “new”, but simply dealt with the evidence already filed.

16.  Fang/HWH go on to submit that the further evidence is in any event unreliable or of little or no evidential value, so that leave to file it should be refused.  Essentially, Fang/HWH say the new evidence is to put in the self-serving, hearsay evidence of unidentified persons as to what discussions are ongoing and the position that may have been reached in them regarding SVO’s involvement.

17.  CT/CTHK also submit that the new evidence ought to be disallowed, because it could have been obtained within time with reasonable diligence and it is in any event unlikely that the evidence would assist Delco in the Application.  Despite specific generation of correspondence on the issue, there remains (a) no indication that Delco has sought to persuade SVO that there really is no difference in terms of the scope of cross-examination between the Netherlands and Hong Kong, and hence SVO should simply attend trial in Hong Kong, and (b) no indication from SVO that he agrees with Delco’s view on the extent of cross-examination under Dutch law.

18.  Having considered the detail of the arguments (contained in the various written submissions, but which I have not set out above), it seems to me that in the exercise of my discretion I should grant leave for the new evidence to be adduced.  The evidence is potentially relevant and helpful to the determination of the Application on an important point going to the ‘shape’ of the trial, and the manner by which evidence might be adduced at trial.  In so far as the new evidence is said in submission to be unhelpful, those are submissions which go to its weight, and which can be taken into account in the overall consideration of the Application.

D.   Applicable Principles

19.  Hong Kong and the Netherlands have ratified the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.  Hence, if granted, the letters of request are likely to be executed by the Dutch judicial authorities.

20.  Nevertheless, when a letter of request is issued, the Hong Kong Court is doing no more than making a request to a foreign court for assistance.  It is not making an order.

21.  Issuing a letter of request is part of the inherent jurisdiction of, and in the discretion of, the High Court: see Kwan Chui Kwok v Tao Wai Chun [2002] HKCA 304 at §12.

22.  The relevant considerations for the court have been considered in, for example, Tang Yi v Edmund de Rothschild Asset Management Hong Kong Ltd [2018] HKCFI 1050 at §§13-17.  Reference can also be made to Johnston and Harris ‘The Conflict of Laws in Hong Kong’ 3^rd Ed at §§11-056 to 11-061.

23.  The starting point remains that witnesses should attend in person in Hong Kong to give their evidence.  Therefore, the onus lies on the applicant to demonstrate that the witness cannot reasonably be expected to come to Hong Kong.  The court will bring a healthy dose of scepticism to arguments that the parties themselves, or the parties’ own employees, family members or other associates will not come to Hong Kong at their behest, where there is no medical or other reason to justify the refusal to come.

24.  If the witness is willing to give evidence, but unwilling to come to Hong Kong, then the giving of evidence through video-link should be considered.  Where a witness has been asked, but has firmly refused, to attend trial in Hong Kong and the applicant cannot reasonably be expected to induce him to change his mind, that may weigh significantly in the applicant’s favour – particularly where the witness is not realistically capable of being influenced to attend in Hong Kong.  The relevant test has been put as to whether the proposed witness can be procured to attend the trial “on the probabilities”: see Hardie Rubber Co Pty Ltd v General Tyre and Rubber Co (1973) 129 CLR 521 at 554.

25.  It also falls to the applicant to satisfy the court that the evidence to be obtained is necessary in the interests of justice.  The actual wording to be found in Order 39 rule 1 is “necessary for the purposes of justice”, which seems to me to identify one requirement of necessity, and not two separate requirements of (a) necessity and (b) in the interests of justice.  In so far as any submissions have seemed to suggest two separate requirements, I reject that point.  The necessity is tied to the purposes of justice.

26.  One important feature is to consider whether the witness can give substantial evidence material to an issue in the trial, requiring the court to identify the issue to which the evidence is said to relate, and then to consider whether the evidence sought is relevant to that issue.  That approach identifies that the relevant interests or purposes of justice are the interests of all the parties to the litigation (not just the applicant).  That triggers a consideration of potential prejudice as well as benefit in the letter of request procedure, but it should be obvious that one of the purposes of justice is to seek to reach the fair adjudication of the factual issue(s) in question.

27.  If the evidence is such that a full-fledged examination (including cross-examination) is appropriate, such as where it concerns disputed versions of what an individual has said, that would weigh against the making of an order.

28.  On the other hand, if on the examination proposed to be conducted in the foreign jurisdiction the rights of the parties would not be so different from those under Hong Kong law, the letter of request may be issued.  Further, including in the letter of request particular provisions designed to obtain improved facilities for the conduct of the cross-examination might, where relevant, be added to the order.

29.  I also accept that the reasonableness of the unwillingness of the witness to give evidence at trial is not a relevant consideration (just as it would be irrelevant to the consideration as to whether or not to subpoena a witness within the jurisdiction).  But the court must be satisfied that the application is made bona fide, and with such promptness as not to cause unreasonable delay before making the order.  Delay is to count against the application if it is inordinate, or if it causes real prejudice which cannot be compensated in costs.

E.   Whether Necessary in the Interest of Justice

30.  Delco submits that this is a clear case where the court should exercise its discretion to issue the letter of request in the interest of justice.  First, Delco says, SVO is a witness who can give material evidence.

31.  It is not in dispute that SVO’s evidence is relevant.  Rather, it is common ground that SVO could or should give evidence and be subject to cross-examination.  The real issue relates to whether that should happen in Hong Kong (physically or via video-link to Hong Kong) or in the Netherlands.

32.  As Fang/HWH submit, that triggers the necessity for Delco to show that the evidence is not just relevant but also necessary in the interests of justice to obtain it abroad.

33.  As to that question, it is not really in dispute that SVO is an important witness, as one of the two directors of Delco at the material time giving rise to these actions.  Ordinarily, any witness who might be described as ‘important’ is likely to be a witness whose evidence the court will consider as being necessary in the interests of justice.  Here, it was SVO who was in charge of the dealings between Delco’s Group and CT/Fang, as well as being one of the directors of CT.  SVO is also the person alleged to have entered into various oral agreements on behalf of Delco.

34.  I think it is weighty that SVO is also probably the only direct witness – at least from Delco’s side – on a number of issues, including whether he entered into the (alleged) 2010 Agreement on Delco’s behalf as well as on some other matters.  It seems that SVO can give material evidence on the alleged Scheme, the genuineness of the alleged debts owed by Delco to Fang, and the issues surrounding Green Elite.

35.  Of course, if there is other evidence which could be adduced on the issues to which SVO might give evidence, that may militate against the finding that it is necessary for the purposes of justice to depart from the ordinary way of taking evidence.  But I do not accept Fang/HWH’s submission that SVO’s evidence is “secondary at best” and would arguably be unnecessary if the documents and expert evidence can prove the existence of the Scheme.  It seems to me that, precisely because the proof or not of the Scheme involves a serious allegation of dishonesty or fraud, the court should seek to obtain the best evidence to assist in the determination of the issue.  Fang/HWH’s reference to a “general lack of evidence of the Scheme” tends to suggest that SVO’s evidence is necessary and should be tested.  Indeed, Fang’s own evidence points to the fact that Herman and Frank (Delco’s witnesses) only heard of the Scheme from SVO.  Further, I do not think it has to be “more necessary than the documentary and expert evidence” to which Fang/HWH make reference; that is not the test.

36.  Nor do I think the existence of other potential witnesses who have some knowledge of the Scheme removes the necessity from obtaining evidence from SVO for the purposes of justice.  Whilst I accept the force in the submission that Delco has not shown that it has attempted to obtain the evidence of certain other potential witnesses on their knowledge of the Scheme, I do not think the potential for evidence from those other witnesses (which may be of some help) renders SVO’s evidence unnecessary. Also, on other points, one of the reasons to conclude necessity in SVO’s evidence is that he is occasionally the only person from Delco’s side to be able to give direct evidence on the issues.  It is no answer to say that there are other witnesses, acting for or suggested by other parties, who can give other relevant evidence.

37.  I take into account the background circumstances emphasised by Fang/HWH.  These proceedings were commenced by Herman, apparently over the protest by SVO who unsuccessfully tried to stop them.  Further, SVO has clearly not fully cooperated with Herman or Mr Hammerstein in the conduct of the proceedings.  As to the specific evidence of the Scheme, Fang/HWH submit that SVO is now supposedly to give evidence against them, his alleged accomplices in the fraud which Delco asserts.  SVO’s evidence would be based on his personal knowledge and is likely to be seriously disputed.  Yet, he remains as a director and joint beneficial owner of Delco and has an interest in the outcome of the actions.

38.  But those points seem to me to identify matters properly to be explored in any cross-examination of SVO, rather than identifying why SVO’s evidence is not necessary in the interest of justice.  I do not accept that the purposes of justice will be best answered by leaving the witness to come over here if he likes, and stay away if he likes.

F.   Whether SVO Cannot Reasonably Be Expected to Come to HK

39.  Delco says that it is unable to procure SVO to attend the trial.  SVO says he is unwilling to attend either physically or by way of video-link.  The request made by Delco to the Dutch court for an order that SVO sign a witness statement in these actions was refused.

40.  Apparently, SVO is concerned because he is of the view that the consequences for his participation in the Hong Kong proceedings are not clearly foreseeable, and he is only prepared to give evidence under oath before a Dutch court with which he is familiar.

41.  As to any limit on SVO’s own willingness to give evidence or on topics for cross-examination, Delco submits that is irrelevant. Whatever the scope of SVO’s willingness, the Dutch law adduced by Fang identifies that SVO can be compelled to attend the Dutch court to give evidence in a foreign civil matter through the letter of request procedure under the Hague Convention.  The witness cannot refuse cooperation or give false evidence, as that would give rise to serious criminal consequence.

42.  Fang/HWH submit that Delco has failed to make good its submission.  First, albeit prior to the new evidence, the submission was that there was no documentary evidence to show that SVO has indicated any unwillingness to attend trial by way of video-link.  Secondly, the evidence shows that SVO is prepared to give evidence by way of the letter of request procedure only because he believes that he would not be cross-examined; but, Delco has not shown whether he would still be so prepared if he were informed that he would be subjected to cross-examination even under the letter of request procedure, or whether he would give evidence by video-link if cross-examination is unavoidable one way or the other.

43.  I agree that the Ruling of the Netherlands court records SVO’s apparent agreement to cooperate for the purpose of introducing his prior statements in other proceedings (in the BVI), provided that he does not have to appear in Hong Kong for cross-examination.  Indeed, it is the link to cross-examination that drives SVO’s decision not to make a witness statement. It also seems clear that SVO’s intention was that any evidence would be given on the understanding that it would be limited to the 2010 Agreement.

44.  Fang/HWH also submit that the reasonableness of SVO’s unwillingness to come to Hong Kong is relevant to whether the court can be satisfied that other options for obtaining his evidence have been reasonably attempted.  Here, SVO is not unwilling to give evidence at all, because he is at least willing to give evidence by the letter of request procedure.  Hence, it is evidence via video-link that should be considered.

45.  Even in the light of the new evidence, Fang/HWH submit that it remains unclear as to whether SVO knows that he cannot necessarily escape from cross-examination simply by agreeing to the letter of request procedure.  If he does clearly know that, Fang/HWH submit, his decision may change; but Delco has not satisfied the burden in this regard.

46.  As to Fang/HWH’s submission that Delco has not shown whether SVO would agree to attend trial by way of video-link if cross-examination is unavoidable one way or the other, I think that slightly misses the point.  As I understand it, if the letter of request is issued by me and executed by the Dutch judicial authorities, SVO would be compelled to attend for examination in the Dutch court.  If so, any belief that SVO may have that the letter of request procedure would permit him to avoid or limit cross-examination would appear to be misplaced.  But, as Delco submit, in any event it may not be right to assume that SVO has not been advised as to the correct position, when he has been separately represented.

47.  Further, I do not see the particular logic in assuming that SVO would reverse his decision as regards appearing in Hong Kong simply because he would face cross-examination if the letter of request procedure is followed in the Netherlands.  Nor do I think it is “questionable” whether SVO would still be unwilling to come to Hong Kong.  Though I accept that there is some proper criticism to be made of the new evidence, I think fairly read it identifies SVO’s continued statement of unwillingness to attend in Hong Kong, or by video-link.  There is also no particular reason to doubt Mr Hammerstein’s statement as to what he says he was informed by SVO.

48.  CT/CTHK remind me that the burden of satisfying the court that the witness cannot reasonably be expected to Hong Kong is a heavy burden, where the nature of the evidence makes it important for the witness to be examined in court.  Further, the applicant should make reasonable attempts to obtain the relevant evidence in other ways, including the giving of evidence through video-link.  I have dealt with both those points above.

49.  As to the analysis that, on Delco’s own case, SVO would be subject to cross-examination with the same rigour in the Netherlands, likewise backed up by serious penalties, I do not think that means that SVO would agree simply to come to Hong Kong to give evidence, or to do so via video-link.  Essentially, whatever the limits and consequences of giving evidence in the Netherlands, SVO’s position appears to be that he is only comfortable giving evidence in a court in a country with which he has some familiarity.  Though others may disagree, SVO might not see much difference between giving evidence physically in Hong Kong or by way of video-link.

50.  I do not think the fact that Delco apparently withdrew its application to the Dutch court for an order for that court to compel SVO to attend the trial in Hong Kong changes the analysis.  I do not think that fact means that Delco has not made reasonable efforts to procure or induce SVO to come to Hong Kong to give evidence and to be cross-examined.  If necessary, I would point out that I do not see “inducement” to be the same as requiring attempted “compulsion”.

51.  My conclusion on the evidence considered as a whole is that SVO cannot reasonably be expected to come to Hong Kong.  Nor do the probabilities point to Delco being able to induce or persuade him to come, or even to give evidence via video-link.

G.   Whether there can be Full-Fledged Cross-Examination

52.  As to the suggestion that there will be no full-fledged cross-examination under the letter of request procedure, Delco submits that is wrong.  Whilst ‘standard’ witness examination is conducted by the parties or their lawyers via the court, special request can be made in the letter of request for cross-examination of the witness by the parties’ legal representative.  The court may in general grant that application, provided it is within the limits of Dutch procedural law (which gives the court power to prevent a certain question from being answered, in particular in the case of improper questions).  Nor is there apparently a protocol prescribing a time restriction for a witness hearing, and video recording and transcription are also possible if specifically asked for in the letter of request.

53.  Though cross-examination in the Dutch court would have to be conducted by a Dutch lawyer, foreign lawyers can be present to give instructions.

54.  Fang/HWH submit that based on the Dutch law opinion obtained by them, there is at least uncertainty as to whether a full-fledged cross-examination could be conducted in the Dutch court.  Under the Dutch ‘standard’ system, there is no clear cross-examination as known to common law systems.  Yet Delco’s Application originally contemplated the ‘standard’ approach, because of the idea of providing a list of questions for the Dutch court to ask.  That would be unsatisfactory.

55.  Delco recognises the unsatisfactory nature because it is now open to the suggestion of live cross-examination to the extent the court finds it necessary, and would welcome the inclusion of provisions in the letter of request rendering the process akin to that in Hong Kong.

56.  But, Fang/HWH say, that approach may not be enough.  The Dutch court might restrict the scope of the questions that could be asked, and might restrict time.  Those restrictions are inimical to a most thorough investigation of SVO’s evidence, which ought to be jealously tested by cross-examination in open court.  Given the complexity of the actions, of which the Dutch court cannot realistically be expected to be fully apprised, it is doubtful whether such an important discretion of the trial judge ought to be left for the Dutch court to exercise.

57.  CT/CTHK also emphasise the loss of opportunity for a full-fledged cross-examination, not least in circumstances where SVO’s evidence would go to contentious factual material as to the existence of an oral agreement – something typically meriting full-fledged cross-examination. CT/CTHK submit that is what distinguishes the present case from other cases, such as the Hardie Rubber case on which Delco places heavy reliance.

58.  But, the core point seems to me to be that the court in Hong Kong should be reasonably satisfied that the proposed exercise to be conducted in the Dutch court would not be an exercise in futility.  Whilst it is preferable not to engage in speculation, I do not think that requires complete certainty in advance as to what will happen in the Dutch court.  Nor does it seem to me necessarily fatal to the Application that there may be differences between the cross-examination which might be conducted in a Hong Kong court and the cross-examination which might be conducted in the Dutch court.  What seems to me to be important is that Fang/HWH and CT/CTHK would have a fair and proper opportunity to cross-examine SVO on those issues in the Hong Kong actions on which they wish to cross-examine.

59.  Even in the Hong Kong Court itself, parties do not have absolutely free rein as to what they might do in cross-examination. There are some limits which are able to be imposed by the court, including as to the scope and length of questioning.

60.  I also think there is over-emphasis placed on the point as to whether the Dutch court will permit or prevent “leading questions”.  Ordinarily, in the common law system, questions put in cross-examination are comprised of a significant number of leading or closed questions.  But, even in the common law system, it is now recognised that some cases, or some evidence and some witnesses, require cross-examination in a different way.  The courts are, in my view, well able to take into account the way in which the question was framed when assessing and weighing the answer obtained.  Nor do I think there is any particular basis to assume the Dutch court would limit the scope of questions beyond improper or irrelevant questions.

61.  Further, I think it will remain open to the parties to make submissions on what is to be made of, and what weight is to be given to, the evidence adduced through the letter of request procedure.  Those submissions can include points relating to the format of the question, or any limitation in questioning imposed, and the like.  That one can foresee those kinds of submissions does not seem to me to give rise to an assumption that the letter of request procedure would give rise to an exercise in futility.

I.   Delay

62.  As to the question of delay, Delco submits that it only became clear to Delco in November 2019 that SVO would be unwilling to attend trial.  An application was made in the Netherlands to compel SVO to give a witness statement, but that was refused in January 2020. The appeal against that refusal, lodged in February 2020, is still ongoing.  In Hong Kong, in the Listing Questionnaires filed on 7 April 2020, Delco informed the court and other parties that it would be taking out an application for adducing SVO’s witness evidence by other means.  The Application was duly taken out on 17 August 2020, before the extended deadline for the issue of further interlocutory applications.

63.  Even if there is no certainty that the examination of SVO could be completed in sufficient time before the trial, Delco submits that is not a ground to refuse the Application.  Progress can be reviewed.

64.  Delco also makes the point, which I accept, that the need to engage Dutch lawyers does not arise out of any question of delay, but out of the letter of request process.  Whilst the additional cost of Dutch lawyers might be some prejudice, of itself I do not think it a sufficient reason not to accede to the Application.  Even if the costs are “enormous” (Fang/HWH’s word), plainly costs can be compensated by an order of costs.

65.  The main point made by Fang/HWH on delay is against the chronology I have identified, against the fact that the procedure to execute a letter of request varies from 6 to 18 months.  Further, going through the process in advance of the trial would be disruptive of preparation for the trial in Hong Kong, not least when it may be necessary for Fang/HWH’s solicitors and counsel to travel to the Netherlands to attend the examination and properly instruct Dutch lawyers on cross-examination of SVO.

66.  The point is also made that in light of the worldwide Covid-19 pandemic situation, there is real uncertainty as to whether travel is even possible to the Netherlands, and the inconvenience to which all persons involved would be put might be immeasurable.  Further, if the letter of request is granted, it would still require working out the specific request to be made in the letters of request which will cause further delay.

67.  The entire situation is, Fang/HWH say, most unsatisfactory, and does not justify the granting of the order sought.

68.  CT/CTHK echo the points on the chronology.  But they also point out that the deviation from the usual practice of exchanging witness statements would provide SVO – a witness who would give evidence involving heated credibility disputes on matters central to the actions – with an “unique opportunity” to tailor his evidence after reading the statement of other witnesses.  Further, Delco was clearly aware of the importance that a statement of SVO’s proposed evidence should be prepared in time for witness statement exchange, because it said so to the Dutch court.

69.  CT/CTHK also rely on the expense and time necessary in properly instructing Dutch lawyers to undertake the actual cross-examination on questions of high credibility, and to ensure synchronisation with the Hong Kong lawyers who conduct other parts of the trial.  Realistically, CT/CTHK say, this will also take up a significant amount of time that their Hong Kong lawyers could have used in dealing with other issues before the trial commences in July 2021.

70.  I agree with Delco’s response that the ability of a witness to see what another witness is likely to say, from prior sight of that other witness’s statement, is hardly “unique”.

71.  But, the much more difficult point to meet is simply the effect of the chronology.  The simple fact is that it is now only six months or so before the trial is fixed to commence in July 2021. There is a real possibility, if not a likelihood, that the letter of request procedure could not be completed by that time.  Of course, that might not be fatal to the trial process if the procedure is able to be completed within a relatively short time of the evidence being given in Hong Kong.  That may require taking some evidence out of its usual turn (where SVO would ordinarily be expected to give his evidence as part of the plaintiff’s case before the defendants called their evidence).  But that is not necessarily an insurmountable problem, if properly managed.

72.  Hypothetically, if the evidence to be taken by the letter of request procedure is only able to be taken after the evidence in Hong Kong has concluded, closing submissions can await the completion of evidence.  Of course, that presupposes the evidence can be obtained through the letter of request procedure within an appropriately reasonable time.  It may, on a practical level, also facilitate preparation for the evidence taking in the Netherlands which does not interrupt the other preparation as would take place in advance of the main trial in Hong Kong.

J.   Result

73.  On balance, it seems to me that obtaining SVO’s evidence is necessary for the purposes of justice, so as to seek to ensure that the issues in these actions are fairly adjudicated on their merits.  SVO’s evidence is “important” or “central” on a number of points, irrespective of the existence of other evidence which is being or may be called on those points. On the evidence as a whole, put forward on this Application, I think that SVO cannot be reasonably expected to come to Hong Kong.  Further, if the letter of request procedure is adopted, with specific requests as to the mode of cross-examination which is requested, I think that an appropriate cross-examination can take place in the Netherlands, as controlled and managed by the Dutch court.  I do not think it is right to think that it would be an exercise in futility, or of so little value as to be not worth the process.

74.  Though some prejudice will undoubtedly lie if the letter of request procedure is adopted, I think that most of the prejudice can be compensated in costs.  What might not be able to be compensated in costs is an inability to complete the trial process, including obtaining evidence both in Hong Kong and in the Netherlands, within a reasonable time after the commencement of the Hong Kong trial in July 2021.  But, whether or not that is the position, remains to be seen.

75.  Therefore, I allow the Application.

76.  But, I also agree that it is necessary properly to formulate the specific requests which will be included in the letters of request.  This is something on which the parties can address me at the next Case Management Conference, on 29 January 2021.

77.  This Decision is taken in the light of current circumstances.  Necessarily, against the timetable for trial fixed in Hong Kong, it will be appropriate to keep the apparent timetable in the Netherlands under review.  Further case management decisions made then have to be taken in the light of the then prevailing circumstances.

K.   Costs

78.  As to costs, I shall simply reserve the question of costs, as it seems to me that the full circumstances in which that question may fall to be considered are not yet, or may not yet be, wholly apparent.