GUANGZHOU GREEN-ENHAN BIO-ENGINEERING CO LTD AND ANOTHER v. GREEN POWER HEALTH PRODUCTS INTERNATIONAL CO LTD AND OTHERS

HCA 4651/2002
HCA 2802/2003
HCMP 74/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4651 OF 2002, 2802 OF 2003 and

MISCELLANEOUS PROCEEDINGS NO. 74 OF 2004

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(The Consolidated Action)

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R U L I N G

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1.  In my Reasons for Ruling of 23 September 2004, I invited submissions from parties as to whether any evidence elicited from DW2 in the afternoon of 10 September 2004 should be expunged from the record as being inconsistent with my ruling that morning.

2.  On 4 October 2004, the Plaintiffs filed submissions asking this court to expunge the following evidence,

(a)    evidence at p.41 of the unofficial transcript dated 9 September 2004;

(b)    evidence at p.38 to 39 of the unofficial transcript dated 10 September 2004.

3.  Submissions were filed on behalf of the Defendants on 4 October 2004. Further submissions by both parties were filed on 7 October 2004.

4.  Mr Ling submitted that my ruling did not debar the Defendants from leading evidence on how repackaging took place although he acknowledged that my ruling precluded them from leading evidence challenging the authenticity of LX-28. With respect, as far as I can discern from the submissions of Ms Tam before I made my ruling on 10 September 2004, the only relevance of the evidence as to how repackaging took place is to challenge LX-28 as a true representation of the product sold in the market by the Defendants. Plainly, it constitutes additional evidence challenging LX-28 which, for reasons given by me on 23 September 2004, should not be led.

5.  Mr Ling argued that the objection came too late because some questions had been asked and answered. I have no hesitation in rejecting that submission. As I said in Paragraph 27 of my Reasons for Ruling, since I made my rulings for reasons to be given later, parties might not be as well aware of the implications of my ruling as if reasons had been given at the same time. That was why I said I believed Ms Tam did not tread upon the forbidden territory deliberately. Once the effect of the series of questions became apparent, Mr Liao and Mr Yan raised objection. I do not consider the objections to have been raised too late. This court has inherent jurisdiction to expunge evidence that should not have been admitted. To hold otherwise would have serious undesirable effect on the conduct of trial. Mr Liao might then feel obliged to raise objections more often than he did. The course of evidence would then be unnecessarily interrupted by arguments on admissibility of evidence from counsel. Since this is not a trial before jury, as professional judge I could and should disregard evidence that should have been excluded.

6.  I do not accept that any prejudice is caused to the Defendants by the expunging of such evidence. That evidence should not have been admitted in the first place. I fail to see how such evidence could be led in a manner that would be unobjectionable. However, if the Defendants felt that they could lead such evidence by another means, they could make an application to ask further questions from DW2 before Mr Liao continued with his cross-examination.

7.  The evidence at p. 38 to 39 of the unofficial transcript dated 10 September 2004 is therefore expunged from the record on the ground that they should not be admitted in view of my Ruling of 10 September 2004.

8.  As regards the evidence on 9 September 2004, Mr Ling argued that it does not come within the scope of Paragraph 27 of my Reasons for Ruling. In his submissions of 7 October 2004, Mr Ling reserved the right to argue the point.

9.  The material part of the evidence of 9 September 2004 (viz. at p.41 of the unofficial transcript) covered two areas,

(a)    hologram;

(b)    expiry date.

10.  Ms Tam had already indicated to this court that the Defendants would not rely on the evidence regarding hologram (see Paragraph 16 of my Reasons for Ruling of 23 September 2004).

11.  As regards the evidence on expiry date, I shall not comment on it in the light of the stance of Mr Ling. I would however encourage the parties to discuss the matter before the trial is resumed in November. I have every confidence that given the helpful and sensible attitude on the part of counsel, the matter could be resolved between the parties. Failing which, I shall hear arguments on the point when the trial resumes.