CHEN JINHUI v. WONG KAM SAN, by his guardian ad litem, HUANG YUEXIA AND OTHERS

CACV 178/2021, [2025] HKCA 646

On Appeal from [2021] HKCFI 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 178 OF 2021

(ON APPEAL FROM HCA NO 1524 OF 2012)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  There are before the Court two summonses taken out by 4^th to 6^th Defendants for leave to adduce new evidence in support of their appeal against the judgment of Deputy High Court Judge Leung (as he then was) dated 19 March 2021:

(1)  By a summons dated 23 January 2025 (“the First Summons”), the 4^th to 6^th Defendants apply for leave to adduce the following 3 items of proposed new evidence –

(a)  Item 1 - a criminal judgment of the Liaoning Benxi Intermediate People’s Court dated 19 September 2024 (“the Intermediate People’s Court Judgment”);

(b)  Item 2 - an email from Cheng Rui (“Cheng”) to Zhang Rongwen (“Zhang”) dated 29 April 2022 and the attachments thereto, including a purported declaration made by the Plaintiff dated 25 April 2022; and

(c)  Item 3 - an email from Cheng to Zhang dated 23 May 2022 and the attachments thereto, including a purported declaration made by the Plaintiff dated 21 May 2022.

(2)  By a further summons dated 24 April 2025 (“the Second Summons”), the 4^th to 6^th Defendants apply for leave to amend the First Summons for the purpose of seeking leave to adduce an additional item of proposed new evidence, namely –

Item 1A - a criminal judgment of the Liaoning Higher People’s Court dated 17 March 2025 (“the Higher People’s Court Judgment”) upholding the Intermediate People’s Court Judgment.

We consider it appropriate to determine these two summonses on paper pursuant to Order 59 rule 14A of the Rules of the High Court, Cap 4A.

ITEMS 2 AND 3

2.  The present applications of the 4^th to 6^th Defendants follow on from their previous applications for leave to adduce new evidence, which this Court dealt with in a judgment dated 4 November 2022 (“the CA Judgment”).

3.  The basic facts of this case, the 4^th to 6^th Defendants’ grounds of appeal, and the applicable principles for admission of new evidence in the Court of Appeal, were set out in the CA Judgment, and will not be repeated here. Unless the context indicates otherwise, the expressions and abbreviations as defined in the CA Judgment will continue to be used in this judgment.

4.  In the CA Judgment, this Court granted leave to the 4^th to 6^th Defendants to adduce “Item 23” as new evidence at the hearing of their appeal. Item 23 consists of:

(1)  a purported declaration made by the Plaintiff dated 3 February 2022 (“the Feb 2022 Declaration”), in which the Plaintiff stated that:

(a)  he was currently under restraint at home (監視居住) because he was suspected of having committed offence(s) of fraud;

(b)  he had forged various documents which were used in legal proceedings in Hong Kong, including the 10/1/2003 Confirmation, the Debt Acknowledgement List, the Letter of Undertaking, the 6/9/2005 Letter and the 8/9/2005 Letter;

(c)  he wished to withdraw the proceedings in Hong Kong; and

(d)  he had asked his appointed lawyer (Cheng) in the PRC to send his declaration to the victims’ lawyers and his own lawyers in Hong Kong (namely, Mak Ka Ping of Adrian Yeung & Cheng); and

(2)  an appointment letter signed by the Plaintiff dated 4 February 2022, whereby the Plaintiff appointed Cheng as his lawyer in relation to his fraud case.

5.  The Court granted leave to the 4^th to 6^th Defendants to adduce Item 23 as new evidence notwithstanding the suspicious circumstances concerning the purported appointment of Cheng as the Plaintiff’s lawyer in the PRC essentially because of the potential significance of the proposed new evidence. Nevertheless, the Court made it clear that there were obvious questions to be asked as to whether the Plaintiff in fact made the alleged admission contained in the Feb 2022 Declaration, and whether such admission (if made) was voluntary, and reserved the question of what weight (if any) ought to be accorded to Item 23 for consideration at the substantive hearing of the appeal (see §52 of the CA Judgment).

6.  Items 2 and 3 are similar in nature to Item 23. The declarations allegedly made by the Plaintiff dated 25 April and 21 May 2022 respectively were made shortly after the Feb 2022 Declaration, and apparently when he was still under restraint at home. The 4^th to 6^th Defendants have had Items 2 and 3 in their possession for more than 3 years. They were produced as exhibits “ZRW-34” and “ZRW-35” to Zhang’s 4^th Affirmation, which was filed by the 4^th to 6^th Defendants on 27 June 2022 in relation to their previous applications for leave to adduce new evidence. As a matter of fact, the 4^th to 6^th Defendants’ previous applications had undergone a few rounds of amendments. The 4^th to 6^th Defendants could have included Items 2 and 3 in their previous applications (by further necessary amendments) so that they could be dealt with by the Court in one go. Instead, the 4^th to 6^th Defendants have delayed for over two and a half years before issuing the First Summons on 23 January 2025. Nevertheless, the Plaintiff has not objected to the 4^th to 6^th Defendants’ application in respect of Items 2 and 3 on the ground of delay. Thus, we shall focus on the merits of the application.

7.  Our reasons for granting leave to the 4^th to 6^th Defendants to adduce Item 23 as new evidence apply equally to Items 2 and 3. As can be seen from the correspondence between the parties’ solicitors, the Plaintiff does not object to the 4^th to 6^th Defendants being granted leave to adduce Items 2 and 3 at the hearing of the appeal, provided that:

(1)  it is without prejudice to “any submissions that the Plaintiff may make as to the admissibility, weight and/or truthfulness of the New Evidence or any parts thereof …”[1]; and

(2)  leave is granted to the Plaintiff to “file and serve affirmation(s) to deal with the admissibility, weight and/or truthfulness of the New Evidence or any part thereof … within 49 days from the date of the Order being made herein”[2].

8.  The 4^th to 6^th Defendants did not agree with the Plaintiff’s proposals, contending in their solicitors’ letter of 26 February 2025, amongst other things, that:

(1)  the “admissibility” of the proposed new evidence should not be in dispute and the Plaintiff should only be permitted to argue the weight to be given to the new evidence; and

(2)  the Plaintiff should be required to file and serve evidence to deal with the weight of the proposed new evidence by 13 March 2025 (in other words, within 14 days), while the 4^th to 6^th Defendants should have leave to file and serve reply evidence within 28 days thereafter[3].

9.  The 4^th to 6^th Defendants argued that the Plaintiff should not be permitted to challenge the admissibility of Item 23 because, it was said, the issue of admissibility had already been dealt with by the Court of Appeal in the CA Judgment[4]. Apparently, the 4^th to 6^th Defendants took the position that the same consideration should apply to Items 2 and 3 as well. This position of the 4^th to 6^th Defendants is not justifiable. Although the Court granted leave to the 4^th to 6^th Defendants to adduce Item 23 as new evidence, the issue of “admissibility” of the new evidence was not raised by either party in the previous applications, and the Court did not make any ruling on whether Item 23 was legally “admissible” as evidence. At §52 of the CA Judgment, the Court expressly left open, inter alia, the question of whether the Plaintiff’s alleged admission was voluntary. As submitted by Mr Stewart Wong, SC (for the Plaintiff), an admission (or confession) extracted from a party by torture is not “admissible” as evidence at common law and must be excluded from consideration altogether when deciding the facts in issue (see Shagang Shipping Co Ltd (in liquidation) v HNA Group Co Ltd (Liberty intervening) [2020] 1 WLR 3549, §§105-107). As recorded in the Intermediate People’s Court Judgment, the Plaintiff did complain that he was coerced into making a confession and his confession was obtained by illegal means[5], although that complaint was not accepted by the Liaoning Benxi Intermediate People’s Court. In our view, nothing in the CA Judgment precludes the Plaintiff from contending at the hearing of the appeal that Item 23 is strictly not admissible as evidence. The same consideration applies to the alleged declarations made by the Plaintiff dated 25 April and 21 May 2022.

10.  In his written submissions for the 4^th to 6^th Defendants, Mr Paul Shieh, SC argues that “‘[a]dmitted’ in the present context (and correspondingly ‘admissibility’) only narrowly means being able to be placed before the Court for consideration”[6]. This submission sparks off an arid debate on the distinction between the “legal admissibility” of a piece of evidence and “adducing the evidence procedurally for the CA to look at it”[7]. While we consider that the 4^th to 6^th Defendants ought to be granted leave to adduce Items 2 and 3 as new evidence (in the sense that they may be placed before the Court for consideration), we accept the Plaintiff’s submission that such leave should be without prejudice to any submissions that he may wish to make as to the admissibility, weight and/or truthfulness of the evidence contained in Items 2 and 3 or any parts thereof.

11.  As for the time that the Plaintiff should have to file and serve evidence in response to the proposed new evidence contained in Items 2 and 3, the 4^th to 6^th Defendants’ justification, contained in Baker & McKenzie’s letter of 26 February 2025, for limiting the Plaintiff to just 14 days (ie on or before 13 March 2025) was that the First Summons was filed and served on 23 January 2025 and the Plaintiff would, by 13 March 2025, already have had 49 days to deal with the matter. The position taken by 4^th to 6^th Defendants conflated the time for the Plaintiff to file and serve evidence in response to (i) the First Summons, and (ii) the proposed new evidence. Logically, the question of whether the 4^th to 6^th Defendants may be permitted to adduce the proposed new evidence is an anterior question which ought to be disposed of first, before consideration is given to the question of the time that the Plaintiff should be given to adduce evidence in response to the new evidence. As it is, the parties have not been able to agree on the terms of the leave to be granted by the Court for the 4^th to 6^th Defendants to adduce Items 2 and 3 as new evidence, and thus this matter has to be resolved by the Court. In his written submissions, Mr Shieh maintains that the Plaintiff should have 14 days from the date of the order herein to file and serve evidence. Taking into account the fact that the Plaintiff is, it appears, currently under incarceration in Mainland China, we consider that the Plaintiff ought to be given a period of 49 days from the date of the order herein to file and serve evidence (if so advised) to deal with the admissibility, weight and/or truthfulness of the evidence contained in Items 2 and 3 or any parts thereof.

12.  As for evidence which the Plaintiff may wish to file in response to Item 23, this falls outside the scope of the First Summons. The Court would leave it to the parties to come to a sensible agreement on this matter. In the event that the parties are unable to reach agreement within 14 days from the date of this judgment, the Plaintiff shall have leave to take out a summons for necessary directions within a further period of 14 days, and the summons will be dealt with on paper.

ITEMS 1 AND 1A

13.  The Intermediate People’s Court Judgment is a first instance criminal judgment of the Liaoning Benxi Intermediate People’s Court, by which the Plaintiff was convicted of an offence of fraud under Articles 23, 266 and 307(1) of the PRC Criminal Law, and sentenced to 10 years imprisonment and fined RMB 20 million allegedly for fabricating his case and forging various documents in the Hong Kong proceedings which led to the Judgment.

14.  The Higher People’s Court Judgment is an appeal judgment of the Liaoning Higher People’s Court upholding the Intermediate People’s Court Judgment.

15.  Under the Hollington principle, a judgment and factual finding of another court or tribunal in earlier proceedings, whether civil or criminal, is inadmissible in subsequent proceeding, unless the party against whom the finding sought to be deployed is bound by it by reason of an estoppel per rem judicatum (Capital Century Textile Company Limited v Li Dianxiao [2018] HKCFI 729, at §23). Prima facie, neither the Intermediate People’s Court Judgment nor the Higher People’s Court Judgment is admissible as evidence in the current appeal.

16.  Mr Shieh, SC argues, however, that insofar as the Intermediate People’s Court Judgment/the Higher People’s Court Judgment contain a summary of the factual evidence presented to the PRC courts (eg the testimony of prosecution witnesses) and such evidence relates to the issues in the Hong Kong proceedings, the contents of those judgments are not excluded under the Hollington principle, nor can they be excluded as hearsay evidence given that such exclusionary rule has been abolished in civil proceedings (see Capital Century, at §§29-34 and 62(1), and Zillion Global Ltd v UBS AG [2020] HKCFI 953, at §15). He accepts, nevertheless, that “a finding of a foreign judge that ‘I find the fact to be A’ is inadmissible to prove A in Hong Kong Proceeding. But if the judge said ‘Before me, witness X said A happened and I believe X that A happened’, the first part can be admitted by way of a hearsay statement made by the judge to prove that witness X had said that A happened.”[8] We accept, as a matter of principle, that the factual evidence set out, or summarised, in the said judgments of the PRC courts can constitute admissible hearsay evidence for the purpose of legal proceedings in Hong Kong. We do not, however, consider that leave should be granted to the 4^th to 6^th Defendants to adduce Items 1 and 1A as new evidence under the First and Second Summonses, for the following reasons:

(1)  Under both the First Summons and the draft Amended Summons annexed to the Second Summons, the 4^th to 6^th Defendants’ application is for leave to adduce the whole Intermediate People’s Court Judgment/Higher People’s Court Judgment as new evidence. If the 4^th to 6^th Defendants wish to adduce only parts of those judgments which set out or summarise the evidence adduced in the PRC proceedings, the 4^th to 6^th Defendants ought to have identified the relevant passages in those judgments in the summonses. Since the 4^th to 6^th Defendants are seeking the Court’s leave to adduce new evidence in their appeal, it is incumbent on them to clearly identify the proposed new evidence which they seek to place before the Court for its consideration. It is not for the Court to identify for the 4^th to 6^th Defendants the relevant passages in the said judgments which may constitute admissible evidence for the purpose of their appeal.

(2)  In Zhang’s 5^th and 6^th Affirmations filed on 23 January 2025 and 24 April 2025 respectively, he identifies various passages in the Intermediate People’s Court Judgment/Higher People’s Court Judgment which the 4^th to 6^th Defendants intend to rely upon at the hearing of the appeal[9]. However, he also makes it clear that the parts of the two judgments of the PRC courts that the 4^th to 6^th Defendants intend to rely upon include, but are not limited to, the specific passages that he has identified in his affirmations[10]. This approach adopted by 4^th to 6^th Defendants is wholly unsatisfactory. As earlier mentioned, it is incumbent on the 4^th to 6^th Defendants to clearly identify the proposed new evidence which they seek to place before the Court for its consideration. Such identification is essential for the Court’s exercise of discretion whether to grant leave to the 4^th to 6^th Defendants to adduce the relevant part(s) of the two judgments of the PRC courts as new evidence in the appeal.

(3)  While hearsay evidence contained in a foreign judgment is not legally inadmissible in civil proceedings in Hong Kong, the 4^th to 6^th Defendants’ applications here concern the admission of proposed new evidence in an appeal. To justify the applications, the 4^th to 6^th Defendants have to show not only that the proposed evidence is legally admissible as evidence, but also that the conditions for admission of new evidence in support of their appeal are satisfied. Different principles apply for the admission of new evidence as to matters which occurred prior to trial (“pre-trial new evidence”) and those which have occurred after the trial (“post-trial new evidence”). The admission of pre-trial new evidence is generally governed by the Ladd v Marshall conditions (subject to the Court’s residual discretion to admit the evidence in exceptional circumstances notwithstanding the non-satisfaction of the Ladd v Marshall conditions), while the admission of post-trial new evidence is subject to the Court’s discretion under Order 59, rule 10(2) of the Rules of the High Court, Cap 4A (see §48 of the CA Judgment). A brief examination of the Annex to Zhang’s 5^th Affirmation, which sets out the particular passages in the Intermediate People’s Court Judgment which the 4^th to 6^th Defendants wish to rely upon in their appeal, show that they include the statements or evidence of numerous persons (including witnesses who gave evidence on behalf of the 4^th to 6^th Defendants before the Judge at the trial, namely, Yu and Zhang), as well as other pre-trial and post-trial documentary evidence. The Intermediate People’s Court Judgment also refers to the statement or evidence of Liu (who gave evidence on behalf of the 1^st to 3^rd Defendants before the Judge), and Bao (who apparently is the prime-mover behind the 4^th to 6^th Defendants). In view of the approach adopted by the 4^th to 6^th Defendants, the possibility that they may also seek to rely on Liu and/or Bao’s evidence as set out in the Intermediate People’s Court Judgment at the hearing of the appeal cannot be excluded. The evidence of Liu, Yu, Zhang and/or Bao would appear to be available to the 4^th to 6^th Defendants to them at the time of the trial. In short, the materials contained in the Intermediate People’s Court Judgment cover both pre-trial and post-trial new evidence (including apparently some accountancy and handwriting expert evidence). The 4^th to 6^th Defendants have not, however, attempted to justify the admission of the proposed new evidence, whether by reference to the Ladd v Marshall conditions or the court’s residual discretion in the case of pre-trial new evidence, or the court’s discretion under Order 59, rule 10(2) in the case of post-trial new evidence.

(4)  At the hearing of the appeal, the parties and Court ought to be focusing on the substantive merits of the appeal, instead of being drawn into arguments on collateral issues such as (i) which particular passages in the two judgments of the PRC courts are not excluded by the Hollington principle and are intended to be relied upon by the 4^th to 6^th Defendants as new evidence, (ii) whether the relevant passages in the two judgments of the PRC courts should be regarded as pre-trial new evidence or post-trial new evidence, (iii) whether, in the case of the pre-trial new evidence, the Ladd v Marshall conditions are satisfied, or whether the Court should exercise its residual discretion to admit the proposed evidence notwithstanding the non-satisfaction of the Ladd v Marshall conditions, and/or (iv) whether, in the case of post-trial new evidence, the Court ought to exercise its discretion under Order 59, rule 10(2) to admit the same.

17.  In all the circumstances, we are not prepared to grant leave to the 4^th to 6^th Defendants to adduce Items 1 and 1A as new evidence at the hearing of their appeal under the First and Second Summonses.

DISPOSITION

18.  In respect of the First Summons, the following orders are made:

(1)  leave be granted to the 4^th to 6^th Defendants to adduce Items 2 and 3 as set out in the Schedule annexed to the First Summons as new evidence at the hearing of their appeal (with the clarification that Item 3.2 refers to page 3 of exhibit “ZRW-35”);

(2)  the order made in paragraph (1) above shall not prejudice the right of the Plaintiff to make submissions in the appeal in respect of the admissibility, weight and/or truthfulness of the evidence contained in Items 2 and 3 or any part thereof;

(3)  the Plaintiff shall have leave to file and serve evidence (if so advised) to deal with the issues in paragraph (2) above within 49 days from the date of the order herein;

(4)  the 4^th to 6^th Defendants shall have leave to file and serve evidence in reply (if so advised) within 28 days thereafter;

(5)  no further evidence may be filed without leave of the court; and

(6)  liberty to apply.

Save as aforesaid, the First Summons is dismissed.

19.  The Second Summons is dismissed.

20.  On the issue of costs, although the 4^th to 6^th Defendants have succeeded in their application in respect of Items 2 and 3, the reason why the matter could not be resolved by consent was because of the position taken by the 4^th to 6^th Defendants on (i) whether the Plaintiff should be permitted to object to the “admissibility” of the proposed new evidence, and (ii) the time that the Plaintiff should be given to file and serve evidence in response to the proposed new evidence. On both issues, we rule in favour of the Plaintiff. Furthermore, the 4^th to 6^th Defendants ought reasonably to have included Items 2 and 3 in their previous applications for admission of new evidence.

21.  In all the circumstances, we make an order that the Plaintiff shall have the costs of the First Summons as from 27 February 2025 (this being the order sought by the Plaintiff), and the costs of Second Summons, to be summarily assessed, with certificate for two counsel. The 4^th to 6^th Defendants shall have leave to file a statement of objections (limited to 3 pages) to the Plaintiff’s costs statement dated 20 May 2025 within 14 days from the date of this judgment. The rest of the costs of the First Summons shall be in the cause of the appeal.

22.  The above costs order is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.