LEUNG SUET HA v. LO KI LING

DCCJ309/2005 &
 DCMP251/2005
(Consolidated)

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 309 OF 2005

BETWEEN   

_________________

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 251 OF 2005

R U L I N G

1.  There is no dispute between the parties that the trial has to be adjourned today.  The consolidated action involved three defendants.  The 3rd defendant in the consolidated action were the occupiers of the subject premises.  The claim against the 3rd defendant began life as an originating summons under Order 113 of the Rules of the District Court, which was served on the 2nd and 3rd defendants of the now consolidated action.  The 3rd defendant did not file any acknowledgement of service. 

2.  Subsequently the plaintiff issued a summons to consolidate the trespass claim against the 2nd and 3rd defendants of the now consolidated action with the other writ action against the 1st defendant of the now consolidated action.  But such summons was not addressed to the 3rd defendant and there was no affidavit of service.  So not unnaturally the 3rd defendant did not turn up at such hearing.  Master T. Chan granted an order on 5 January 2006 directing consolidation of the two actions, naming the 1st, 2nd and 3rd defendants in the consolidated action and directing such defendants, i.e. including the 3rd defendant, to file and serve pleadings and the parties i.e. including the 3rd defendant, to file and serve witness statements and lists of documents.  It is plainly implicit that the order had to be served on the 3rd defendant but there was no evidence that this had been done. 

3.  Subsequently, solicitors for the plaintiff and solicitors for the 1st and 2nd defendants filed a consent summons to amend the pleadings.  The 3rd defendant was not a party to such consent summons.  Yet when Master T. Chan made the order on 21 February 2006, it is apparent that the consent summons sought and Master T. Chan directed the defendants, i.e. including the 3rd defendant, to file relevant pleadings (if any).  Although it is quite implicit that such order should be served, there was again no evidence of the same.

4.  There is no evidence that the 3rd defendant was notified of the pre-trial review hearing or served with a pre-trial review notice.  Master R. Lai by his order dated 3 October 2006 set the case down for trial to be heard today.  The 3rd defendant is absent today.  There has been no order for split trial, yet there is no evidence that the 3rd defendant has been notified of the trial today.  In the circumstances, both the plaintiff and Mr Hui, counsel for the 1st and 2nd defendants, agree that the trial has to be adjourned for the 3rd defendant to be properly notified.  Mr Hui informed me that since the plaintiff acts in person, his instructing solicitors are prepared to serve my order to be made today on the 3rd defendant and to file an affidavit of service for such purpose. 

5.  I further impose on the assistance of the 1st and 2nd defendants’ solicitors to ask them to arrange for service of the existing documents on the 3rd defendant.  So in relation to the 3rd defendant, I make the following orders:-

(1)   The 1st and 2nd defendants on behalf of the plaintiff do serve the following documents within seven days on the 3rd defendant:

-        Re-amended statement of claim;

-        Amended defence and counterclaim of the 1st and 2nd defendants;

-         Reply and defence to counterclaim of the 1st and 2nd defendants;

-         Plaintiff’s list of documents;

-         Plaintiff’s supplemental list of documents;

-         Plaintiff’s second supplemental list of documents; and

-         Plaintiff’s witness statement;

(2)      The 3rd defendant do file and serve their defence and counterclaim, if any, within 21 days of the service of this order; 

(3)       Leave to the plaintiff to file and serve the reply and defence to counterclaim, if any, vis-à-vis the 3rd defendant within 14 days thereafter;

(4)       The 3rd defendant do file and serve list of documents within 14 days thereafter; 

(5)       The 3rd defendant do file and serve witness statements as to fact within 21 days thereafter;

(6)       The order to be drawn up in Chinese and served by the 1st and 2nd defendants on all parties.

6.  Next, the 1st and 2nd defendants filed a supplemental list of documents on 5 February 2007.  It was served on the plaintiff on 6 February 2007 and the copy documents were served on the following day.  Such supplemental list filed and served in less than a week to trial is plainly late.  However, no affidavit to account for the lateness was produced by the 1st and 2nd defendants today.  I have referred Mr Hui to the guidance by Deputy High Court Judge Lam, as he then was, in Hong Lok School & Another v Chow Sai Yiu & Another HCA17139/1999 and 19001/1999, unreported, 2 July 2003 as follows:-

“It behoves a litigant giving discovery at the eleventh hour (as in the case of the plaintiffs here) to provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from its opponent,

(a)        the reasons why these documents were not disclosed earlier;

(b)        the provenance and the makers of these documents;

(c)        the relevance of these documents to the issues before the court;

(d)        the availability or non-availability of the makers to attend trial for cross-examination in case the opponents make an application under section 48 of the Evidence Ordinance. ”  

7.  In that case, counsel was unable to deal with the matters fully and the court directed the plaintiffs to produce an affidavit to account for the late discovery.  The need for an affidavit to account for the lateness was accepted in Guanghzou Green-Enhan Bio-engineering Co Ltd & Another v Green Power Health Products International Company Limited & Others HCA4651/2002, HCA2802/2003 and HCMP74/2004, Lam J, unreported, 22 July 2004. 

8.  As a general observation, the court is generally unhappy with last minute applications at the commencement of trial for further evidence to be filed or further discovery to be made.  It is a duty of the handling solicitor to ensure that his client’s case is properly prepared for trial and careful consideration and attention should be given to the completion of the checklist with counsel’s advice if necessary before the case is set down.  Here, the checklist by the solicitors for the 1st and 2nd defendants dated 6 September 2006 stated that discovery had been completed.  As Lam J said in paragraph 19 of Wong Siu Yeung v Chiu Kwong Wing & Others, HCA5249/1999, unreported, 20 May 2005:-

“ The court should be able to rely on the diligent conduct of solicitors in the preparation of his client’s case for trial, otherwise it will make a mockery of our case management system.” 

9.  Here the explanation offered was that the 2nd defendant only recently found the documents.  But the documents were all dated from 1994 to 2006.  Mr  Lo Sang has passed away for some time and the 1st defendant has been looking after his affairs.  There was no suggestion of any difficulty arising from the search of Mr Lo Sang’s effects.  In my view, the explanation offered is not a good reason at all.

10.  Given my view, I see no reason for the parties to incur further time and cost to adduce the reason for lateness in a supporting affirmation.  However, it is not to say that litigants should not adhere to good practice in similar future applications. 

11.  Despite the lack of good explanation, whether the court shall allow the use of further discovery is a balancing exercise and the court must exercise its discretion fairly in light of all the circumstances and the explanation given.  There is a need to strike a balance between the timetable laid down for discovery which promotes expeditious despatch of litigation and the principle that the adjudication of claims on merits should not be denied as a result of procedural default unless the default causes prejudice to its opponent for which an award of costs (and the adjournment of the trial if necessary) cannot compensate.

12.  I have no doubt, despite the plaintiff’s assertions to the contrary, that the new documents are relevant to the issues of the case under the Peruvian Guano test.  They pertain to the issues in the present case including the relationship amongst the plaintiff, Mr Lo Sang, and the 1st defendant, and the financial dealings amongst them in respect of the subject property and other properties such as the one at Castle Peak Road.  One of the main contentions between the parties was who paid for the subject property and the re-mortgage payments as well as the expenses in relation to the property.  The documents in relation to the routing of funds were plainly relevant. 

13.  I note that the plaintiff said that they were false documents but this was no more than a bare assertion at this stage.  No doubt, if this were her case, she will file notice of objection as to authenticity and lead evidence on the subject at the trial.  Since the trial is going to be adjourned in any event, I do not see how the plaintiff will suffer prejudice that cannot be compensated by such adjournment and costs, if appropriate. 

14.  In the circumstances, I grant leave to the 1st and 2nd defendants to file and serve the supplemental list of documents out of time.

15.  Mr Hui makes a further application as a corollary to the further discovery that leave be granted to the 1st and 2nd defendants to file and serve further witness statements to explain the newly discovered documents.  Not only will such step be relevant to 1st and 2nd defendants’ own case, it will also assist the plaintiff to properly understand the purport of the newly discovered documents and to answer these newly discovered documents appropriately and effectively.  I agree that the further witness statement suggested by the 1st and 2nd defendants is necessary and probative, but the plaintiff should be given leave to reply to the same. 

16.  I therefore grant leave to the 1st and 2nd defendants to file and serve further witness statements restricted to explaining the newly discovered documents in the 1st and 2nd defendants’ supplemental list of documents within 21 days, and leave to the plaintiff to file witness statement as to fact in reply within 21 days thereafter.  Such witness statements shall be in Chinese or in English with Chinese translation and the Chinese translation must be served together with the witness statements.

17.  Both parties agree that the affirmations filed in DCMP 251/2005 can be read at the trial.  I therefore direct that the affirmation of Lo Sang dated 10 March 2005 be read at the trial of this consolidated action.  I further direct that the affirmation of the plaintiff dated 21 January 2005 and her second affirmation dated 6 July 2005 do stand as her further witness statements.

18.  Mr Hui also seeks to re-amend the amended defence and counterclaim by including a prayer of relief by the 2nd defendant for a declaration that the compromise as defined therein and made in Hunan Province, PRC, between the plaintiff and Lo Sang was void and null and/or unenforceable.  Although the application is late, I bear in mind that the trial will be adjourned.  Whether to grant leave to re-amend is a balancing exercise and the court must exercise its discretion in a fair manner having regard to all the circumstances.  There is a need to strike a balance between the timetable laid down for pleadings which is designed in the public interest for expeditious dispatch of litigation and the principle that the applicant should not in an ordinary way be denied adjudication of his claim on the merits because of procedural default.  Ching JA, as he then was, in Chau Mei Lee Fragrance v Ng Yee Tim [1996] 4 HKC 46 at page 52 said:

“Amendments should not be refused however late the application is made provided that they are not designed to overreach and provided that no prejudice is caused to the other side which cannot be cured by cost and an adjournment if necessary.” 

19.  Here the application to amend is to add a prayer of relief.  I am persuaded no new dimension is added to the 1st and 2nd defendants’ case.  In light of the above principles, I see no irreparable prejudice that prevents the amendment and/or that time and an opportunity to file and serve an amended reply and defence to counterclaim cannot cure.  The plaintiff claims that the 1^st and 2^nd defendants’ assertion is untrue, but that is a matter that has to be resolved at trial and not by shutting out the amendment. 

20.  I therefore grant leave to the 1st and 2nd defendants to re-amend the amended defence and counterclaim as per the draft submitted to the court and to file and serve the re-amended defence and counterclaim within 7 days.  I also direct that at the same time of the service of the re-amended defence and counterclaim, the 1st and 2nd defendants do serve Chinese translation of the said re-amendments by letter with copy thereof filed with the court. 

21.  I grant leave to the plaintiff to file and serve amended reply and defence to counterclaim of the 1st and 2nd defendants within 14 days thereafter. 

22.  Given the aforesaid procedural steps to be taken, it is too early to re-fix a trial date.  I therefore direct that upon compliance with the above directions and orders, the 1st and 2nd defendants do forthwith apply to restore the consolidated action for a pre-trial review before the listing master in chambers to set the case down for trial.  The 1st and 2nd defendants do notify all other parties of the said pre-trial review hearing and the eventual trial date. 

23.  I have directed the 1st and 2nd defendants to attend to the pre-trial review matters for convenience because the plaintiff is acting in person.  For the avoidance of doubt, the plaintiff is also entitled to restore this consolidated action for a pre-trial review, so I grant liberty to apply.

(Discussion re costs in Chinese)

24.  Both parties accept that they are partially to blame for the present state of affairs.  In the circumstances, they agree that the cost of today’s hearing and costs in respect of the directions given today be costs in the cause.  I agree and grant such costs order.