PATRICK COWLEY AND ANOTHER v. ALL POWERFUL HOLDING LTD AND ANOTHER

HCB 104/2017

[2022] HKCFI 604

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

BANKRUPTCY PROCEEDINGS NO. 104 OF 2017

____________

____________

____________

______________

D E C I S I O N

______________

1.  I dismiss the 2^nd Respondent’s summons of 10 September 2021 which seeks leave to file and serve a fresh affirmation in place of the 4^th Affirmation of Chan Chung Yi for the following reasons.

2.  It is not clear what the jurisdictional basis of such an application is.

3.  As regards the part of the summons which amounts to replacing Ms Chan’s 4^th affirmation, the 2^nd Respondent is not saying that it seeks to expunge the affirmation from the court file.  It is content to leave it on the file.  Insofar as the 2^nd Respondent is saying that it does not wish to rely on Ms Chan’s 4^th affirmation, it does not need a court order for this purpose.

4.  As regards the part of the summons which amounts to filing a “fresh affirmation” from Mr Li, this amounts to an application for leave to file an (as yet unseen) affirmation which is very much out of time.  Directions for the filing of evidence for the Rule 117 application were given by G Lam J on 11 May 2021 which provided that the 2^nd Respondent’s affidavit in reply was to be filed and served within 21 days of the affidavit in opposition, and that no further evidence was to be received without leave of the court.  Insofar as it is being said that Ms Chan’s wish not to be cross examined is the reason for putting forward a new affirmation from another deponent out of time, this is not a good ground for the court to exercise its discretion in the 2^nd Respondent’s favour; the possibility that the Trustees might apply to cross examine Ms Chan is a matter which the 2^nd Respondent could have considered when deciding who should be giving evidence on its behalf in the first place, in the same way that the 2^nd Respondent checked with Mr Li that he is agreeable to being cross examined before he made any affirmation.

5.  The reasons advanced in the 2^nd Respondent’s skeleton in support of the application do not address these points, and do not otherwise take the matter further.

(1)   The 2^nd Respondent says in paragraph 31 of its skeleton that no prejudice would be caused to the Applicant by the substitution. But as the Trustees submit, one of the grounds in support of the application to cross examine Ms Chan is that there are contradictions between her evidence in the current proceedings and that given in HCMP 1076/2020. If the 2^nd Respondent were allowed to put forward a new deponent, the Trustees would not be able to test these contradictions, which would be prejudicial to their stance as to the genuineness of the agreements which are said to have been made between the Bankrupt and the 2^nd Respondent.

(2)   The 2^nd Respondent says in paragraph 32 of its skeleton that the new deponent Mr Li would be able to travel to Hong Kong if given sufficient advance notice.  This does not address the issue of why substitution of the deponent should be allowed in the first place.

6.  In any event, the application does not address the concern given by the 2^nd Respondent for making the application, since the Trustees’ O.38 application is that if the 2^nd Respondent wants to rely on either Ms Chan’s 3^rd or 4^th affirmation, they will ask for cross examination of Ms Chan, so that even if her 4^th affirmation is “swapped”, presumably the Trustees would still apply to cross examine Ms Chan on her 3^rd affirmation.

7.  To the extent necessary, I also accept Mr Ng’s argument that to justify such an extraordinary application, it would be necessary to demonstrate good grounds.  Mr Cheung submitted that Mr Li was a more suitable deponent than Ms Chan, but as Mr Ng points out, and Mr Cheung does not dispute, Mr Li was not a director of the 2^nd Respondent at the time of the impugned transactions set out in Ms Chan’s 3^rd affirmation at paragraph 5.  The 2^nd Respondent says that Mr Li is the Bankrupt’s business partner, willing to attend court and willing to be cross examined.  That to my mind does not constitute good ground to justify this unusual course.

8.  I therefore dismiss the application.  I will hear the parties on costs.