POLO COURT DEVELOPMENT LTD v. TENY LTD

DCCJ 2134/2020

[2025] HKDC 629

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2134 OF 2020

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DECISION

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1.  This is the PTR for a trial scheduled to start on 3 June 2025.

2.  Mr Lau Ying Biu acts for the plaintiff (“P”). Miss Joyce H Y Lee acts for the defendant (“D”). Having read their written submissions it seemed clear to me that the disputes between the parties insofar as today’s directions are concerned boiled down to two matters, namely (1) whether D should be allowed to file and serve a supplemental witness statement for Cheung Wah Hang on or before 14 April 2025 (“Issue 1”); and (2) whether the witness statement of Norman Chang can be adopted as his evidence-in-chief at the trial (“Issue 2”).

3.  I had serious concerns vis-à-vis both issues and raised written requisitions, inviting the parties to address me on them orally today, which they did.

4.  On Issue 1, my main concern was D never provided this Court with a draft of the intended supplemental witness statement so that I could not scrutinize its contents and determine their propriety. It appeared to me that giving D a blank cheque would be dangerous in that if the contents of the supplemental witness statement turn out to be inappropriate, or if those contents would create a need for further investigations being conducted by P, the trial due to start in 8 weeks’ time could be derailed and costs would be wasted. Mr Lau Ying Biu, acting for P, sensibly submitted he was never in a position to consent to D’s application unless he had been provided with a draft.

5.  The legal principles are trite but in light of the application they need to be set out here so that the parties can understand why I am refusing to hear the application in the absence of a draft.

6.  It is best that I start with Keiron Peter Arch Rochester v Glory Sky Previous Metals Limited [2023] HKCFI 2536 where Wilson Chan J, in my view entirely correctly, stated this (§9): -

“… A supplementary witness statement may be allowed to be served to give the witness of a party the chance to fill in gaps in his own statement or to answer the statement of the opposite party…”

7.  A judicial officer who had been in private practice at one point or another would fully understand the necessity or desirability of the parties making applications to file and serve supplemental witness statements does arise frequently. Sometimes, as was the case in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§120), the solicitors on record were at fault in that important questions were never asked of the witness in question, resulting in court documents being defective. In this connection, interviewing a witness is not that different from using ChatGPT, DeepSeek or similar AI models – one can only get useful answers if one asks the right questions. Defective prompts would lead to defective answers. Witnesses are usually without legal background. It is the job of a competent solicitor to prompt lay persons to provide the necessary evidence addressing the real issues in dispute in a helpful manner. If that was done badly, but the defect was most fortunately discovered in good time, the solicitor (be it the same, or a different, one) who discovered the defect is duty-bound to advise the client to attempt to rectify the defect before trial. An application to file and serve supplemental witness statements can be an admirable rescue mission. Of course, and this arises even more frequently, the solicitors on record can be completely blameless. Staying on the theme of ChatGPT, DeepSeek or other AI models – sometimes using the most appropriate prompts still lead to false or otherwise inadequate answers. If a solicitor (be it the same, or a different, one) discovered that the existing witness statements are no good because of a miscommunication in the past, or the failure of the witness to be helpful at the first interview, the solicitor who realized this is also duty-bound to advise the client to attempt to rectify the defect before trial.

8.  However, with the potential disruption which any application to file and serve supplemental witness statements may cause to the trial of the action, we have rules governing such applications. In my view, the best summary of such rules is in the dictum of Mr Recorder William Wong SC in Re Cao Zhong [2021] HKCFI 3143, at §23, as follows: -

“To summarise, the relevant considerations for a judge exercising his discretion are: -

(1) the merits of the proposed application: whether the application if granted would assist the court in securing the just resolution of the dispute in accordance with the substantive rights of the parties;

(2) whether there is any disruption to the trial or any milestone date;

(3) the presence or absence of any real prejudice to the other party;

(4) any conscious flouting of the rules of court, practice directions and/or case management directions/timetables, or any over-reaching or deliberate manoeuvring on the part of the applicant; and

(5) the objectives of the Civil Justice Reform.”

9.  One can look at the list above and come to the firm view that whilst there is no rigid rule requiring the presentation of a draft, the reality of the matter is that in the absence of a draft, a judicial officer is usually in no position to determine whether leave should or should not be granted.

10.  As I mentioned in Lei Yukang v Lin Youjun [2023] HKDC 568 (§20), and also in Licksun Company Ltd [2025] HKDC 372 (§5): -

“Practitioners are reminded of what was said by DHCJ Herbert Au-Yeung in JTM324 Strategic Advisors, Inc v Permex Co Ltd [2023] 1 HKLRD 1437 [2023] HKCFI 403 (at §18). A court of law is not a rubber-stamp. All parties to all civil actions and their legal representatives should assist the court by making all necessary inquiries, and placing all relevant materials before the court, in a timely and helpful manner.”

11.  In the context of an application to file and serve supplemental witness statements, “relevant materials” would include the supplemental witness statements in draft forms.

12.  Miss Joyce H Y Lee, acting for D, sensibly accepted that the normal practice was for an applicant for leave to provide the Court with a draft supplemental witness statement first, so that the Court can scrutinize the intended contents. She profoundly apologized for not having submitted one on this occasion, with a full explanation. I accepted her apologies and explanation but the more pertinent question was what, then, should be done going forward.

13.  Since it appeared to be possible for the matter to be dealt with by the parties by consent for as long as D’s legal team can come up with a draft supplemental witness statement within 7 days from today my decision is to simply refuse to deal with the matter today, and impose an unless order for D to take out a proper inter partes summons with a draft supplemental witness statement annexed, failing which D should be barred from making any application for leave to file and serve supplemental witness statements before the commencement of the trial. There should also be an affirmation in support from D explaining (1) the serious delay; and (2) in what way can the supplemental witness statement assist the trial judge in the adjudication of this matter.

14.  Turning to Issue 2, P’s original submissions that the witness statement of Norman Chang should somehow not be adopted as evidence-in-chief were incomprehensible. P’s real options were to (1) make a proper application to have the witness statement expunged; or (2) let the statement get adopted as evidence-in-chief exactly as it is and deal with any perceived problem with its contents by way of cross-examination and submissions on weight. After some oral discussions, Mr Lau Ying Biu, acting for P, chose option (2) and formally withdrew his objection to the witness statement of Norman Chang being adopted as evidence-in-chief without prejudice to his future submissions on issues of weight, etc.

15.  That was most sensible.

16.  All things considered, I hereby make the following order: -

(1)  The trial shall commence on 3 June 2025 at 9:30 am as scheduled.

(2)  D’s solicitors shall, on or before 17 April 2025, provide to P’s solicitors both hard and electronic copies of the transcripts for all audio recordings which D would seek to rely on as evidence at the trial for P’s agreement. All transcripts as agreed or revised shall be inserted into the trial bundles and clearly marked as agreed or not agreed as the case may be by 24 April 2025 at the latest.

(3)  This reasoned decision be inserted into the trial bundles and the index should be updated accordingly. For all reasoned decisions in the trial bundles, Neutral Citation Numbers should be clearly set out in the index. Under no circumstances should the parties remove the Neutral Citation Numbers.

(4)  Unless D takes out an inter partes summons with a draft supplemental witness statement annexed by 4 pm on 15 April 2025, D be debarred from making any application to file or serve supplemental witness statements.

(5)  Such an inter partes summons must be accompanied by an affirmation in support and be listed before any Judge (and not a Master) of the District Court. Parties should then seek to have this inter partes summons dealt with by consent if possible.

(6)  P shall lodge and serve both hard and soft copies of P’s written opening, list of authorities, copies of authorities by 4 pm on 19 May 2025. Soft copies of P’s written opening shall be in both PDF and MS Word formats.

(7)  D shall lodge and serve both hard and soft copies of D’s written opening, list of authorities, copies of authorities by 4 pm on 26 May 2025. Soft copies of D’s written opening shall be in both PDF and MS Word formats.

(8)  The trial should be conducted bilingually, that is to say with submissions being made and received in English, and with live oral evidence being given and received in Cantonese.

(9)  Translation of documents be dispensed with.

(10)  All filed and exchanged factual witness statements and expert reports, including the factual witness statement of Norman Chang, can be adopted as evidence-in-chief, provided that the witness in question tenders himself or herself for cross-examination.

(11)  Leave be granted to the parties to play audio recordings in Court using their own electronic devices or portable speakers.

(12)  Should a party wish to play video clips at the trial using the Court’s TV screen, that party should liaise with the Court’s clerk in good time to ensure there shall be no technical impediment for the same to be done.

(13)  Costs of this PTR with Certificate for Counsel be in the cause.

17.  For the record, I am aware Miss Joyce H Y Lee, and Holman Fenwick & Willan, were new to the case. I hope they would perform their duties better than their predecessor, who somehow failed to appear in Court in April 2021 and wasted costs – see [2021] HKDC 508 (§§7, 8 & 23). All practitioners should take their professional obligations seriously.

18.  I thank both advocates for their most able assistance.