CHAN CHEUNG PO v. KWAN KAY CHEONG AND ANOTHER

HCA 17139/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 17139 OF 1999

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(By Counterclaim)

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REASONS FOR RULING

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1. On the first day of trial, Mr Thomson (counsel for the Plaintiffs in HCA 17139 of 1999 and the Defendants in HCA 19001 of 1999 ["the Plaintiffs]") informed this court that the Plaintiff had prepared a Supplemental List of Documents dated 28 June 2003 and intended to rely on the ten items listed therein for the purpose of the trial. The Supplemental List was supplied to the other parties at so late a stage that Mr Wong (counsel for Chow Sai Yiu and Chan Cheung Po ["the Defendants"]) did not have an opportunity to inspect the originals of the documents listed. Mr Wong initially took objection to such late discovery.

2. Eventually, the differences between the parties narrowed down to items 1 to 5 of the Supplemental List. Having heard the explanation of Mr Thomson as to the relevance of items 7 and 8 and inspected the originals, Mr Wong conceded that the Plaintiffs could rely on those items at the trial. On the other hand, in view of the deprivation of the Defendants of a proper opportunity to investigate into some hearsay statements contained in items 9 and 10, Mr Thomson conceded that the Plaintiffs would not rely on those two items.

3. After hearing submissions, I ruled on 2 July 2003 that the Plaintiffs should be allowed to rely on items 1 to 6 as well for the purpose of this trial. I now give reasons for this ruling.

4. Although discovery is a continuing obligation and supplemental lists of documents have to be filed from time to time to fulfill such obligation, a litigant giving late discovery should anticipate his opponents complaining about the same. In a proper case, the court may consider adjourning a trial in order to give the other side a proper opportunity to look into issues arising out of these new documents. In most cases, the party giving late discovery would also need to serve additional hearsay notice to enable him to adduce those new documents as evidence at the trial. The requirement in Section 47A(2) of the Evidence Ordinance is that the notice should be served in a manner as is reasonable and practicable in the circumstances for the purpose of enabling the other parties to deal with any matters arising from its being hearsay. However, Section 47A(4) provides that a failure to comply with sub-section (2) shall not affect the admissibility of such evidence. But this would have a bearing on costs and weight to be attached to such evidence.

5. Section 47 (1) of the Evidence Ordinance provides that the court in certain circumstances could exclude hearsay evidence. Sub-section (1)(b) laid down the criteria,

"the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice."

Mr Wong relied on this sub-section to invite this court to exclude items (1) to (6).

6. In the light of the above, I am of the view that 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 as least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from his opponents,

(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 his opponents makes an application under Section 48.

7. Regrettably, when Mr Thomson addressed this court on 30 June 2003, he was unable to give reliable information concerning some of these matters. As a result, Mr Wong was quite justified in being suspicious about the explanation offered by Mr Thomson as to the late discovery of these documents. Pursuant to my direction, the Plaintiffs produced an affidavit of Mr Kwan Kay Cheong to account for the late discovery of these documents on 2 July 2003.

8. The account given by Mr Kwan Kay Cheong was slightly different from the explanation offered to this court by Mr Thomson on 30 June 2003. Mr Thomson accepted responsibility for that and told the court on 2 July 2003 that it was due to his misunderstanding. He accepted that he should have taken clearer instructions before he addressed the court.

9. I accept this explanation from counsel and I can see the relevance of items (1) to (6) to the issues I have to decide. I would not go into the details as the trial is still going on before me. I was told by Mr Thomson that the Plaintiffs could not be sure as to the precise identity of the makers of these items. However, the Plaintiffs' case was that the cheque book in question was kept by Kwan Bing Sun at the material time and those cheques and records on the cheque stubs should have been written by him or by someone on his instructions. Kwan Bing Sun is dead and it is unlikely that whoever wrote these on his instructions could be located or if located, could have much recollection about making these entries. Hence, even if these documents had been disclosed at an earlier stage, it probably would not make much difference to the Defendants' preparation of the their case. Mr Wong had not suggested otherwise. In other words, the Defendants have not identified any specific prejudice caused to them as a result of this late discovery. I also bear in mind that the issue of unilateral withdrawals by Kwan Bing Sun had already been raised in the existing evidence and the Defendants were not taken by surprise as to that. The new documents only supplemented the Plaintiffs' evidence. As matter stands, the Defendants' position regarding these withdrawals appear to be putting the Plaintiffs to strict proof instead of setting up any positive case to rebut the Plaintiffs' case.

10. The main attack of Mr Wong was on the lack of proper explanation on the late production of these documents on 30 June 2003 and the discrepancies between Mr Kwan's account and Mr Thomson's earlier account. These have been partly dealt with by Mr Kwan's affidavit and partly by Mr Thomson's explanation in Paragraph 8 above.

11. I note that items (1) to (6) were only photocopies and the Plaintiffs did not have the originals. They were however consistent with the records of withdrawals from the company's account contained in a minute of meeting at D673 of the court bundles. Mr Kwan suggested in his affidavit that these were photocopied by Kwan Bing Kong. Mr Wong can of course cross-examine Mr Kwan as to his account of late discovery of these documents in his Affidavit. On the whole, I think these are points more relevant to the weight that the court could attach to these documents. Having regard to the circumstances of this case and the circumstances under which these documents were disclosed, I cannot say that the exclusion of these documents is not prejudicial to the interests of justice. I therefore ruled that they were admissible at the trial.