Yicko GA Network Securities Ltd. v. Oriental Patron Asia Ltd.

HCA9848/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCA9848 OF 2000

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R U L I N G

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1. I have an application made by Miss Cheng who appears for the defendant to direct that, at all events, the main witnesses in this action should be required to give their evidence in-chief orally. The position is presently held under an order of Master Jones dated 8 January last year where under paragraph 4 he made the usual order as to mutual exchange of witness statements and he went on to order that the statements were to stand as evidence-in-chief unless the trial judge otherwise directs, and it is that part of the order of Master Jones that Miss Cheng now asks me to deal with.

2. The basis of her application is that in this matter there is the sharpest possible dispute on a number of crucial conversations that are said to have taken place between the various witnesses that are inevitably bound to affect the outcome of this case and therefore, she submits, that it simply would not be appropriate to let their evidence-in-chief go in in statement form.

3. This matter has been dealt with in a number of cases. In Hong Kong the leading authorities appear to be, firstly, the case of Hanwa Kozai v Hang Yu Limited (1995) 1 HKC 841, a decision of Keith J and in the Court of Appeal the case of Amy So v Leslie Au [1995] 2 HKC 113. The effect of these authorities appears to be this: that whilst the matter remains very much in the judge's discretion that where there is sharp dispute, it is by far the better practice to direct that the witnesses should come and give their evidence-in-chief orally so that the judge can form a more reliable view as to how their recollection bears on this matter and of course as a far better aid to credibility, notwithstanding the fact of course that the opposing party will be able to cross-examine the witnesses on their witness statements. These two cases appear to take much from the English Court of Appeal decision of Mercer v Chief Constable of Lancashire Constabulary [1991] 1 WLR 376.

4. I am bound to say that in a case such as this, and I have read these witness statements in preparation for this trial, that it would be far better if the main witnesses - at all events - I have in mind Mr Poon and Mr Kwan on behalf of the plaintiffs and Mr Leung and Mr Chan on behalf of the defendants - should give their evidence-in-chief orally. That is the order that I am going to make.