EALTHY CATERING HOLDINGS LTD v. SUPERIOR LUCK LTD AND ANOTHER

DCCJ 5075 & 5628/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5075 & 5628 OF 2015

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(Consolidated by order of Registrar Lui dated 9 August 2016)

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DECISION

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1.  In this pre-trial review hearing, the court is asked to determine an issue (“the issue”), ie whether the plaintiff is allowed to rely upon the statements disclosed in its 2^nd supplemental list of documents dated 21 June 2017 at trial. The trial will commence on 4 September 2017, with 4 days reserved.

2.  Previously, this court heard submissions from the parties on 22 May 2017 and handed down a decision on 26 May 2017 (“the 1^st Decision”) dismissing the 1^st defendant’s application for leave to cross-examine certain persons on the contents of the documents listed as items 5, 14 to 18 of the plaintiff’s list of documents filed on 7 November 2016 and for leave to issue and serve subpoenas for the purpose of securing the attendance of the said persons at trial.  The issue is related to the 1^st Decision.  For ease of reference, the abbreviations used in the 1^st Decision are adopted herein.

3.  In the hearing on 22 May 2017, the 1^st defendant accepted that Category A documents were documents made by Appreciate, and Category B documents were documents made by AWE.  The 1^st defendant sought leave to cross-examine YW Leung on Category B documents, leave to cross-examine Lau on Category A documents, and leave to issue and serve subpoenas on YW Leung and Lau.  For the reasons set out in the 1^st Decision, I dismissed the 1^st defendant’s application with costs.

4.  On 21 June 2017, the plaintiff disclosed the following documents (“the statements”) by its 2^nd supplemental list of documents:-

(a) 2 statements of YW Leung;

(b) a statement of Lau;

(c) a statement of KT Leung;

(d) a statement of Madam Lau Yuet Wah (“YW Lau”)

The statements in (a) concern Category B documents, while the statements in (b), (c) and (d) concern Category A documents.

5.  Mr But for the plaintiff submits that these documents came into existence shortly before the hearing on 22 May 2017.  The plaintiff has repeatedly requested the makers of these statements to attend the trial to testify as the plaintiff’s witnesses but to no avail.  Mr But submits that be that as it may, these documents should still be admissible evidence and the court may decide the weight to be attached to these documents at the end of the trial.

6.  Mr Chai for the defendants submits that the discovery by the plaintiff’s 2^nd supplemental list of documents dated 21 June 2017 is a late discovery, and unless with leave from the court, the plaintiff is not entitled to rely upon the statements at trial.  In the absence of any explanation justifying the delay, leave should not be given to the plaintiff.  Mr Chai draws my attention to Kinetic Medical Health Group Company Limited and Others v Dr Tse Ivan Cheong Yau (HCA 1115/2010, 30 April 2015) and USE International (HK) Ltd v Maritima Maruba S.A. (HCA 632/2011, 19 November 2013).

7.  In Kinetic Medical Health Group Company Limited, DHCJ Marlene Ng said:-

“32. …… as I have explained in Liu Chen v Chan Poon Wing & anor HCPI779/2006 (unreported, 7 October 2009) at para. 24, where discovery is given at the eleventh hour just before trial, it is quite 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. Mr Tang acknowledged that the plaintiffs’ new discovery was late, but he disagreed it was made at the eleventh hour. In my view, although the plaintiffs’ new discovery was not made on the first day or in the course of trial, there can be no doubt that making discovery of a substantial volume of documents after the 1st PTR and a month before trial (irrespective of whether it should be described as having been made at the eleventh hour or not) is patently and obviously late.

33. Given the lateness of such further discovery, it should be anticipated (especially after the Civil Justice Reform (“CJR”)) that the opposing party would complain of such lateness. It is therefore incumbent on a litigant giving such late discovery to make proper inter partes application to seek leave of the court for such new discovery. ……” (Emphasis added)

I respectfully agree.

8.  Notwithstanding that the plaintiff’s discovery by its 2^nd supplemental list of documents was made 2½ months before the commencement of the trial, the discovery was made after the filing of all the evidence by the parties.  In my judgment, the discovery is a late discovery and the plaintiff may only rely upon the statements disclosed with leave of the court.

9.  I decline to give leave to the plaintiff:-

(a) Mr But, in his submissions, explains that the statements only came into existence shortly before the hearing on 22 May 2017.  However, the explanation for the delay is a factual matter, which should be given in an affidavit, not by counsel in submissions.  Further, even if I take the explanation offered by Mr But into account, there is still no explanation as to why the plaintiff did not ask the relevant persons to give statements at an earlier time.  In my view, there is no satisfactory explanation for the delay in disclosing the statements.

(b) Further, the makers of the statements will not give evidence at trial. Mr But submits that the maker of each statement has confirmed in the statement that the contents of the statement are true.  However, the confirmation is not given under oath.  The makers of the statements will not come to the trial to confirm the statements on oath.  Mr Chai would have no opportunity to cross-examine the makers of these statements.  In these circumstances, it would be difficult to imagine that the statements may add anything to the plaintiff’s case.

(c) For the reasons above, the plaintiff should not be allowed to rely upon the statements at trial.

10.  Accordingly, I order that the plaintiff be disallowed to rely upon the statements disclosed in its 2^nd supplemental list of documents dated 21 June 2017 at trial.  Costs of the arguments on this issue be to the defendants in any event, with a certificate for counsel, to be taxed if not agreed.

11.  For the avoidance of doubt, the order above only disallowing the plaintiff to rely upon the statements.  The plaintiff may rely upon Category A documents and Category B documents (copies of which are attached to the statements), which have been disclosed in the plaintiff’s list of documents filed on 7 November 2016.  As to the weight to be attached to Category A documents and Category B documents, this is a matter to be determined at trial.

12.  I thank for Mr But and Mr Chai for the assistance provided to this court.