LIU KEITH CHE MING AND ANOTHER v. POON CHI SING t/a GOOD VIEW ORNAMENT

DCCJ2421/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2421 OF 2010

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BETWEEN

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D E C I S I O N

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1.  The plaintiff applies by summons to adjourn the trial in order to either exclude the evidence of the defendant in respect of the photographs dated May 2008 or undated on the alleged pre-existing state or condition of the walls and ceilings at the property. They are at pages 405 to 411, 418 to 440 and 489 to 501 of bundle C, or alternatively, to reopen the case to enable the plaintiffs to adduce further evidence, both orally and with documentary evidence in order to rebut the defendant’s allegations raised in his evidence in court on the pre-existing condition of the walls and ceilings at the property.

2.  The plaintiffs further apply that in the event that exclusion of the evidence and photographs is disallowed, to call for a further supplemental expert report from the single joint expert, Mr Kenneth Chan, before the adjourned hearing, and thirdly, to subpoena Mr K M Tse of Taikoo Shing (Management) Limited to give evidence on the management regulations on renovation work at the Taikoo Shing Estate.

3.  The plaintiffs’ application is opposed by the defence.

4.  The ground for the application submitted by Miss Chan, counsel for the plaintiffs, is that the defendant had given evidence on the photographs, although they were produced and disclosed in the defendant’s lists of documents some time before the trial, his evidence on those photographs were not disclosed in any of his witness statements.  Consequently, according to Miss Chan, they came as a surprise to the plaintiffs.

5.  Miss Lam, counsel for the defence, pointed out that these photographs were disclosed under the defendant’s lists of documents filed on 5 November 2010 and the first supplemental list of documents on 23 August 2011, long before the trial commenced.  She further pointed out that the defendant, Mr Poon, had referred to some of the photographs in his second supplemental witness statement of 10 April 2012.

6.  Miss Chan’s answer in rebuttal is that those photographs referred to in the supplemental witness statement were all dated correctly on the photos and they were not those that she had objected to in this summons.

7.  She is quite right.  They were not the subject of today’s summons.  In fact, they were not amongst those disclosed earlier either.

8.  I am aware from the two lists of documents filed by the defence on 5 November 2010 and 23 August 2011 that their descriptions were, respectively, ‘copy photos taken at the plaintiffs’ property-undated’ in the first list, and in the second list, ‘copy photos taken at the plaintiffs’ property before renovation-undated.’

9.  I am also aware that the plaintiffs’ legal representatives filed a questionnaire on 12 December 2011 informing the court that the parties were unable to agree the contents of the joint letter to the joint expert for clarification and the parties were trying to resolve the matter.  In the same questionnaire, the plaintiffs informed the court that it is not necessary to call the expert at the trial.

10.  The defence questionnaire of the same date, on the other hand, pointed out the defence’s wish to cross-examine the single joint expert on the report.  This was opposed by Miss Chan, counsel for the plaintiffs at the time.  Her submission in writing on 14 December 2011 under paragraph 11 stated:

“If the calling of the expert is only to ask him about the status of the property before the arising of the dispute, the plaintiffs respectfully submit that it is a finding of facts, a duty of the court, not of the expert to make. See Chan Yuet Keung v Harmony (International) Knitting Factory Limited, HCPI 144/2009. It is not a valid reason for adducing the expert for cross-examination.”

11.  The above submission and the defence’s lists of documents clearly indicated the defendant’s case on the pre-existing condition prior to the renovation of the property would be part of the defendant’s defence.  The plaintiffs, therefore, could not have been taken by surprise with the disclosure of the photographs months before the trial and the evidence of the defendant in court.  Furthermore, part of the defendant’s evidence was on the pre-existing condition of the property in his 10 April 2012 witness statement filed before the trial commenced.

12.  Based on the aforesaid reason, I am not satisfied the plaintiffs have shown a valid case to expunge the said photographs or the defendant’s evidence on these photographs, or to allow the plaintiffs to reopen their case to admit new evidence in rebuttal.  Evidence on the said photographs should have been anticipated before the trial and should have been dealt with in the plaintiffs’ first witness’ evidence.

13.  As to the admission of a further supplemental expert report from the joint expert, Mr Chan, I do not think the expert should be troubled yet again.  He has given two supplemental answers pursuant to the letters from the plaintiffs and from the defendant.  Though his report might be different if he was shown all the photographs before he made his first report in January 2011, it is now too late.

14.  On the application to subpoena Mr K M Tse of Taikoo Shing (Management) Limited, I am not satisfied that the plaintiffs’ case should be allowed to reopen to admit his evidence.

15.  The plaintiffs lodged the claim in 2010.  They were given many months for preparation and a number of pre-trial hearings took place to assist the parties in preparation for the trial.

16.  This four-day trial had have turned into an eight-day trial, I am surprised at this stage that one of the parties should ask the court to reopen the plaintiffs’ case to allow a new witness to be called on a witness subpoena.

17.  The application should not have been made; it is refused.

18.  Costs of the application to be borne by the plaintiffs, with certificate for counsel.