MARTNOK THANRADEE v. COMMISSIONER OF POLICEAND ANOTHER

HCA 789/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 789 OF 2011

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REASONS FOR DECISION (NO 1)

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1. Judgment in this action was handed down on 14 July 2016 (“Judgment”). These Reasons for Decision (No 1) should be read together with the Judgment. For easy reference, I shall adopt the abbreviations in the Judgment.

2. On the 1^st day of trial on 18 March 2014, after hearing counsel’s submissions, I granted leave for P to serve Angel’s witness statement except paragraph 7 therein (which was expunged) but P would not have leave to lead evidence from Angel to amplify her redacted witness statement, and on such basis P was allowed to call Angel as her witness to give evidence at trial. I also granted costs of the application to Ds to be taxed if not agreed, and P’s own costs be taxed in accordance with Legal Aid Regulations. These are my reasons for decision, which I have reserved.

3. P previously intended to call Chukanya (known to P by her nickname Ah Jiim and who was Somchai’s defence witness at the Somchai Trial) as her witness, and had served her witness statement dated 14 November 2012. On the 1^st day of trial, Mr Leung, counsel for P, made an oral application to substitute Chukanya with Angel as her witness. But apart from a witness statement signed by Angel on 16 March 2014, P did not have any summons and/or any affidavit to explain the basis of such application. It was only upon query by the court and Mr Shum, counsel for Ds, that P prepared her supporting affirmation.

4. In her supporting affirmation P explained that after Chukanya signed her witness statement she already indicated to P she felt uncomfortable about testifying in court as the present action involved policemen. Thereafter P spent most of her time in Thailand, but whenever P was in Hong Kong P and Chukanya would contact each other and P would casually inform her of progress of the present action. But after one such contact in January/February 2013, Chukanya no longer answered P’s call and cancelled her telephone number. P felt Chukanya was unwilling to testify in court, and P did not want to press her.

5. On/about 25 February 2014, P ran into Angel (who used to be a regular customer of the Pub) in North Point. She had lived in Thailand for 2 years and told P she had just returned to Hong Kong for 2 days. P did not contact Angel in Thailand as she did not know Angel’s address. P was surprised by the encounter because Angel was the customer mentioned in paragraphs 31-32 of her witness statement, and told her solicitors who requested a meeting with Angel. Since Angel worked in the afternoon until quite late, P was only able to organise such meeting at a restaurant on 6 March 2014. At the meeting P requested Angel to be her witness, but Angel wanted to think about it. It was only on 16 March 2014 that Angel told P she was willing to be her witness, so her witness statement was prepared only then.

6. Undoubtedly, the application was very late. I note Registrar Lung had imposed an unless order for exchange of witness statements to take effect by 04:00pm on 15 November 2012. The cards-on-the-table litigation culture after the Civil Justice Reform required P to frankly inform Ds at the earliest opportunity that it was unlikely that Chukanya would be available to give evidence at trial. The suggestion that Chukanya might turn up at the last moment despite P having lost contact with her for 2 years (such that Chukanya did not even know the date of trial) was, to say the least, so remote that it was unfair not to tell Ds about the situation, but there was no intimation about this even at the 2^nd pre-trial review on 28 February 2014.

7. Regrettably, P remained silent even when she must have known Ds were concerned with Chukanya’s statement evidence. On 29 November 2012, DoJ wrote to P’s then solicitors about Chukanya’s witness statement asking whether she was involved in any of the alleged incidents mentioned in the Amended SoC. On 7 December 2012, P’s then solicitors replied to the DoJ by referring to paragraphs 8(f) and 8(aa) of the Amended SoC which pleaded that when police carried out licence checks, they had “made disturbance to the customers of [Pub] by irritating them with language and evicting them from the Premises” and that they would “cause annoyance to customers”. On 11 December 2012, DoJ again wrote to P’s then solicitors about Chukanya’s witness statement, and asked more precisely when (say, in or around which month in 2006) that the alleged incident referred to in paragraphs 6-7 of such witness statement took place. On 17 December 2012, P’s then solicitors replied that P was unable to state the date of the event more precisely than what had been stated in her witness statement.

8. But not only did P (who well knew from Ds’ above concern about Chukanya’s statement evidence) not inform Ds she had not been in contact with Chukanya for a long while and probably would not call her as witness, paragraph 14 of Mr Leung’s written opening submissions dated 10 March 2014 still stated “P will call a witness named [Chukanya]”, and the joint time estimates that were agreed between counsel the week before trial still referred to Chukanya as witness for P. But by that time, P’s solicitors already had a meeting with Angel, and P had asked Angel to testify in place of Chukanya on her behalf. Nevertheless, no intimation was given to Ds until the 1^st day of trial that P was then exploring the possibility of a replacement witness. There was, in my view, some force in Mr Shum’s complaint of ambush tactics.

9. Mr Shum rightly took strong exception to paragraph 7 of Angel’s witness statement that referred to various incidents at the Pub involving various police officers on various dates. According to P’s supporting affirmation, 1 such incident as described in Angel’s witness statement happened on an evening after 9 November 2006 (the exact date of which P could not recall) that P described in paragraphs 31-32 of her own witness statement. But paragraph 7 of Angel’s witness statement did not identify any particular dates or any particular police officer(s). Mr Shum submitted Ds should have time/opportunity to investigate Angel’s allegations (possibly after administering interrogatories) and to marshal/ adduce rebuttal evidence (possibly calling the relevant police officers if identified after investigation). For those reasons, Mr Shum submitted (and I agree) it was far too late for P to attempt to adduce statement evidence in paragraph 7 of Angel’s witness statement when obviously Ds would suffer forensic prejudice.

10. As for the other paragraphs of Angel’s witness statement, the contents were similar to what had been stated in Chukanya’s witness statement in respect of the Pub’s general operations on/after mid-2006 from a customer’s perspective. Even up to the 1^st day of trial, Ds had expected Chukanya to give evidence since P did not tell them about Chukanya’s unavailability, so Ds should/would have been prepared to deal with those matters at trial. Mr Shum submitted that without identification of the relevant time period such statement evidence had no relevance to the particular situation of the Pub on 27-28 September 2006 when the WPCs         carried out covert undercover operation. But Ds did not make any attempt expunge similar matters in Chukanya’s witness statement prior to the trial, and it was for P to make out her case (if she can) on the relevance of such evidence in the course of the trial.

11. In my view, although Ds might have been aggrieved by lack of forewarning in respect of such late application, I am not persuaded the remaining paragraphs of Angel’s witness statement would cause Ds irreparable forensic prejudice. I do not see why P should be deprived of her fortuitous encounter with Angel in early 2014 to elicit evidence that Ds could properly meet, especially when Mr Leung accepted he would not seek to amplify Angel’s witness statement in her evidence-in-chief.

12. In the circumstances, I have granted the order set out in paragraph 2 above on the 1^st day of trial.