YU SIU CHEUK V. REALRAY INVESTMENTS LIMITED

HCA277/2007

IN THE HIGH COURT OF THE

HONG KONGSPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 277 OF 2007

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BETWEEN

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REASONS FOR DECISION

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1.  On 22 July 2010, I heard arguments on paragraphs 2 to 5 of the Case Management Summons issued by the defendant on 25 January 2010 (“the CMS”) and gave the following directions on the conduct of the re-trial of this action:

(1)   The retrial is to be listed before a bilingual judge in the fixture list, with 5 days reserved.

(2)   A pre-trial review hearing is to be held before the trial judge no later than six weeks before the retrial, with liberty to the parties to apply by writing to the court to dispense with the hearing in the event they are in agreement that there is no matter required to be dealt with at the pre-trial review hearing.

(3)   There is an order in terms of paragraph 4 of the CMS. 

(4)   No oral evidence will be received from the respective expert witness of the plaintiff and defendant at the retrial unless the trial judge otherwise directs.

(5)   The Plaintiff may file and serve within 28 days further or supplemental witness statements on facts.

(6)   The Defendant may (if so advised) file and serve within 28 days thereafter witness statements on facts.

2.  I now reduce my oral reasons into writing.

3.  Paragraphs 2 to 5 of the CMS Summons seek the following orders:

(1)   The retrial be fixed before Mr Recorder Shieh SC who was the trial judge of the first trial (paragraph 2).

(2)   The retrial be limited to counsel’s submissions with no further evidence to be received (paragraph 3).

(3)   All evidence admitted at the first trial, including the transcripts of the trial, do stand as evidence in the retrial (paragraph 4).

(4)   No further evidence and/or viva voce evidence be admitted at the retrial (paragraph 5).

4.  In essence, the CMS raised two broad questions.  First, who should be the trial judge of the second trial.  Second, how is the evidence to be received at the second trial.

5.  On the first matter, it should be noted at the outset that the Court of Appeal had in CACV 181/2009 set aside the judgment of the Recorder in the first trial and ordered a new trial of the action.  This is not the same as ordering that the action be remitted to the Recorder for continuation and for further findings to be made on whether the plaintiff had been in adverse possession for over 20 years (or 12 years) before the commencement of the action.  Consequently, the Recorder is not disqualified from presiding over the new trial.  At the same time, the Court of Appeal has intended there is to be a trial de novo, without limiting who may be the trial judge of the new trial.  Thus analysed, Mr Shum, who appears for the Plaintiff, is correct in his submission that the general principle that parties are not at liberty to choose the trial judge should apply. 

6.  In contending on behalf of the Defendant that the new trial should be listed before the Recorder, Mr Chan SC argues the proposed course will save time and costs.  This is because the Recorder, by reason of his having dealt with the first trial, is familiar with the facts and evidence and also had the opportunity of listening to the witnesses and observing the manner in which they testified.   It is also pointed out that in allowing the appeal, the Court of Appeal had made no adverse comment on the Recorder’s findings on facts and credibility.

7.  However, as the retrial is to take the form of a new trial, the Recorder will have to consider all the evidence and issues afresh and to make findings accordingly.   Familiarity with the case is therefore not a factor that should carry significant weight.  I do not agree that, as a matter of case management, the new trial must be fixed before the Recorder.

8.  As an alternative, the Defendant asks for a direction that the trial be listed preferably before the Recorder.   As in other actions ordered to be re‑tried, the listing officer of the court will be aware of and sensitive to the fact that there had been a first trial before a particular judge.  In the normal case, he will give this matter due weight when he decides on the trial date, taking also into account such relevant matters as the position of the court diary, counsel availability and that trials ought to come on as soon as possible.

9.  I do not consider that the circumstances of this action are such as to call for a special direction to be given to the listing officer.  Instead, the listing officer should be left to deal with the listing of the retrial in the usual way, which would encompass the approach that I have already outlined.

10.  On the second question of the evidence to be received at the first trial, there is no disagreement that the evidence of the first trial should form part of the evidence in the new trial.  Paragraphs 3 and 5 of the CMS, however, seek to restrict the evidence to be received at the retrial.  They ask that at the retrial there should only be counsel’s submissions and that no further evidence or oral evidence should be received. The written submissions of Mr Chan SC at page 10 (i.e. the heading preceding paragraph 27) takes a slightly different position in that he suggests that no further evidence should be allowed unless the trial judge gives leave to do so.

11.  The thrust of the submissions on behalf of the Defendant is that as the Plaintiff has yet to indicate what further evidence there is, the court should proceed on the basis the plaintiff does not have any further evidence to be put before the court.  Accordingly, the Defendant says, the Plaintiff ought to be put to the burden of applying for leave if he indeed wishes to adduce further evidence.

12.  I accept it would have been prudent for the Plaintiff to indicate at the hearing whether new or further evidence will be adduced at the retrial, and to give at least the broad framework of the new or further evidence.  But the fact that he has not done so does not provide a basis for making an order in terms of paragraphs 3 and 5 of the CMS since it is not in dispute that, as a matter of principle, parties can put in new or further evidence for the retrial, which is a new trial.  In terms of case management, I see no good reason why the court should not at the hearing of the CMS give directions for the filing and service of further or supplemental witness statements.  If the further or supplemental witness statements turn out to be repetitions, or entirely irrelevant, or otherwise not in order, then the other party can apply to disallow them either at or before the retrial commences.  The direction suggested by the Defendant, namely, the court should withhold giving directions until after the Plaintiff applies for leave to file further or supplemental witness statements, is at odd with the common ground that the parties are not prevented from adducing further evidence for the purpose of the new trial.

13.  I therefore decline to give directions in terms of paragraphs 3 and 5 of the CMS or along the terms proposed in the Plaintiff’s submissions (as mentioned above).  There is an order in terms of paragraph 4 of the CMS, so that the evidence of the first trial, including the transcript, shall stand as evidence for the second trial.  I also give directions for the parties to serve and file further or supplemental witness statements.

14.  Both the Plaintiff and the Defendant indicate agree it is not necessary to call the respective experts to testify at the retrial.  Accordingly, it is ordered that no oral evidence is to be received from the experts at the retrial unless the trial judge otherwise directs.

15.  The costs of the CMS and the costs reserved under paragraph 6 of the order dated 26 February 2010 shall be costs in the cause of the retrial.  As to the costs of the hearing on 22 July 2010, while it is a CMS hearing, the bulk of the arguments turn on issues that were in the end resolved against the Defendant, the appropriate order would be to make the costs of the hearing  the Plaintiff’s costs in the cause of the retrial.  The Plaintiff’s own costs will be taxed in accordance with the Legal Aid Regulations.