HING YIP HOLDINGS (HONG KONG) LTD (In Compulsory Liquidation) v. CELLMARK CHINA LTD (In Voluntary Liquidation) (Formerly known as Pechiney Far East Limited) AND ANOTHER

HCCL 15/2016

[2020] HKCFI 757

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 15 OF 2016

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R U L I N G

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1.  The pre-trial review originally scheduled for hearing on 23 April 2020 during GAP, for trial to commence on 6 July 2020, was directed to be dealt with on papers.

2.  The parties have been able to agree on directions for trial, save for the dispute as to whether 2 documents (“Disputed Documents”) should be included in the trial bundle, as suggested by the Plaintiff on 31 March 2020.

3.  Having considered the submissions made by the parties, this Court is not prepared to permit the inclusion of the Disputed Documents.  The brief reasons are as follows.

4.  As the Court held in Hong Lok School Limited v Chow Sai Yiu, HCA 17139/1999, 7 July 2003 and in Big Island Construction (HK) Limited v Wu Yi Development Company Limited, HCA 1957/2005, 22 February 2010, in a case of late discovery made on the eve of trial or at the commencement of trial, it behoves a litigant giving discovery at the eleventh hour to establish why the Court should exercise its discretion to permit the late discovery in its favour. The litigant should provide a good and credible explanation, by affidavit, as to why the document was not disclosed earlier.  Absent such explanation, the application may be refused on the ground of delay alone.  Further, the burden is on the applicant to provide the Court and the other side with full and accurate information as to the provenance and the maker of the document, the relevance of the document to the issues before the Court, and (if applicable) the availability or otherwise of the maker of the document to attend trial for cross-examination.

5.  Even if there are documents which had been hitherto disclosed, but were not referred to in the witness statements filed for the trial, and are sought to be introduced into the trial bundle as evidence at the eleventh hour, there should be affidavit evidence as to the use proposed to be made of the documents in question, to allow the opponent in the litigation to fairly prepare for trial and to enable the Court to properly exercise its discretion in dealing with objections from the opponent.

6.  In this case, there has been no affidavit offered by the Plaintiff, to explain the long delay from the discovery of the Disputed Documents to the proposal to include them in the trial bundle.  This is particularly inexcusable when the trial of the action had been scheduled initially to commence on 10 September 2018, and was adjourned one week before commencement of the original trial (due to the illness of the trial judge).  Preparations for trial should have been completed, at the very latest, by August or September 2018.  Yet, the proposal to include the Disputed Documents was only made in March 2020, when the adjourned trial is scheduled to commence on 6 July 2020.

7.  The Plaintiff does not dispute that it had discovered the 1^st Disputed Document (“Article” dated 19 January 2008) in September 2018, and had referred the 2^nd Defendant to the Article in March 2019, seeking further discovery of documents relating to the contents of the Article.  Notwithstanding the ensuing correspondence which had been exchanged between the parties, and the refusal by the 2^nd Defendant to make discovery of documents claimed by the Plaintiff to be relevant, the Plaintiff had failed to pursue the matter, by applying for specific discovery, or otherwise.  Even if the Article may be relevant in some respects (as argued by the Plaintiff), it was obviously the Plaintiff’s conscious and considered decision not to include the Article in the evidence for trial.  There is no good reason why the Article should now be included at the last minute, 12 months after the Plaintiff’s discovery of the relevance of the Article, when they had all the time after the last adjournment to take the necessary action to adduce the Article by way of evidence for the adjourned trial, with proper witness statements to state and explain the relevant facts pertinent thereto - but chose not to do so, until 31 March 2020.

8.  Prejudice to the 2^nd Defendant will clearly result, in view of the negative imputations contained in the Article.  It is only fair that if the Article should be included in the evidence, the 2^nd Defendant must be given an opportunity to deal with it.  Further discovery and witness statements would be inevitable.  These distract the parties from the proper preparations for trial in the remaining time available, and the need to consider whether to file further evidence is prejudice in itself (Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp, HCAL 12/2009, 21 September 2009).

9.  As for the 2^nd Disputed Document (“Email” with job description of CW as at June 2002), this is a document from the Plaintiff’s own records, but which the Plaintiff had failed to disclose.  The Plaintiff claims that the Email had been located in 2018 in the course of preparation for the original trial, but the Plaintiff decided that it was preferable to wait until closer to the new trial date to decide whether to introduce the Email into the trial bundle.  Discovery by a supplemental list of documents was only made on 21 April 2020. 

10.  The objections outlined in the preceding paragraphs as against the Article apply equally to the Email.  For over 12 months, the Plaintiff decided not to take action to make proper disclosure of the use proposed to be made at trial of the Email.  There is no acceptable reason why the Email should be introduced into the evidence at such late stage before the commencement of the trial.  The relevance of the work description in June 2002 to the issues of CW’s role and authority in the subject Transactions is marginal.  To allow the Email into the evidence at this late stage necessitates further, probably elaborate, discovery, and is disproportionate to any weight which may be attached to the document. 

11.  The present application for late production of documents goes entirely against the CJR objectives, and cannot be condoned. 

12.  The other directions for trial are agreed, as set out in Part A of Annex 1 to the Submissions of the 2^nd Defendant.  The Plaintiff is at liberty to serve and file written objections to the 2^nd Defendant’s Statement of Costs by 4 pm on 13 May 2020. 

13.  The additional directions are that the parties should lodge the Agreed Chronology 7 days before the commencement of trial, and that the Opening Submissions, Agreed Chronology and witness statements should all be marked with the trial bundles pagination of all the documents referred to.