XCHRX CHENG YUK v. LIU CHONG HING BANK LTD.

HCA1388/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.1388 OF 2000

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REASONS FOR DECISION

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The summons

1. By a summons dated 3 December 2001, the plaintiff applies for various orders, namely that : -

(1) Leave be granted to amend the Statement of Claim;

(2) Specific discovery be ordered against the defendant in relation to the account of one Yeoh Hiong Ting no.01-10-15562-3 including but not limited to statements of the account from 1985 to 1991 ("Yeoh's account");

(3) Specific discovery be ordered against the defendant in relation to the account of the plaintiff no.256-10-139100-6 including but not limited to all statements of the account ("the New Account");

(4) Specific discovery be ordered against the defendant in relation to the account of the plaintiff no.01-10-15227-7 including but not limited to all statements and in-and-out records of the account ("the Designated Account");

(5) Leave be granted to the plaintiff to adduce expert evidence from a professional accountant;

(6) Leave be granted to the plaintiff to adduce evidence of one more witness as to fact; and

(7) The hearing of the trial of this action scheduled for the 17 to 19 December 2001 be vacated.

2. Following argument on 7 December 2001, I gave my decision on the summons. It will be convenient to deal in turn with each of the orders requested in the summons.

Amendment of Statement of Claim

3. Mr Samuel Chan for the defendant did not oppose the amendments which were attached to the summons. Accordingly I give leave to the plaintiff to amend and serve the Statement of Claim as per the draft.

Specific discovery of Yeoh's account

4. In support of her summons, the plaintiff served an affirmation dated 3 December 2001 dealing with this aspect. The plaintiff refers to a bank statement of the account where there was an entry made on 4 August 1987 in which the account was credited with the sum of $480,019.22. Mr Junius Ho, for the plaintiff, submitted that there should be further discovery in relation to this amount, as it was possible that the plaintiff might have overpaid the defendant in this sum.

5. In response, the defendant, in an affirmation of Ms Iris Cheng, states that $480,019.22 was the sum that had been written off by it as a bad debt and therefore was not a sum that represented in any way an overpayment by the plaintiff. Reference was made to a number of documents which, like the said bank statements, had been disclosed to the plaintiff during the discovery process.

6. Whether or not the defendant's allegations are true, is a matter which can, I suppose, be canvassed at trial, but as far as further discovery at this stage is concerned, I bear in mind the fact that the documents which have given rise to the plaintiff's application have been in her possession for quite a long time (since discovery and inspection took place some time ago). In these circumstances and given the proximity of the trial date, I am of the view that the probative value of this class of documents is not such as to militate towards an order for further discovery at this stage. It is noteworthy that the plaintiff does not raise any positive case in relation to this sum. Her approach is a somewhat speculative one. I am not satisfied that discovery is necessary for the purposes of RHC Order 24, rule 8.

The New Account

7. The request for specific discovery of this class of documents was withdrawn by Mr Ho and I say no more about it.

Specific discovery of the Designated Account

8. In support of this part of the summons, the plaintiff refers to one of the advice slips from the defendant of her mortgage account in which there was a reference to an account numbered 01-10-15227-7. Again this was a document which the plaintiff has had in her possession for a long time, having been disclosed in discovery. Likewise, I find that the lateness of the application is telling against the making of an order for specific discovery. It is also unnecessary for the purposes of RHC Order 24, rule 8. The plaintiff's case is not that there was anything necessarily sinister about the existence of this account but that its existence was yet another matter which ought to be investigated. The response from the defendant was that the Designated Account was no more than an account created internally by the defendant and was not therefore relevant to the issues in the action. Again, I suppose this is a matter which can be raised at trial. However, it appears to me that the probative value of these documents is not such as to balance out the prejudice to the defendant in having to provide what may be voluminous documents or certainly documents which may take some time to locate. I am therefore of the view that specific discovery of this category of documents should not be permitted at this stage.

Expert evidence

9. Mr Ho for the plaintiff submitted that expert evidence was required of a professional accountant dealing with what were essentially mathematical calculations. For my part, I am not convinced that this would be a matter which requires expert evidence. In any event, no expert report has as yet been compiled and in the circumstances, for this additional reason, it would be wrong to make an order granting leave to the plaintiff to adduce expert evidence.

Evidence of factual witness

10. I was informed by Mr Ho that the plaintiff proposes to call her son, Mr Yeoh Chi Pang to give evidence on her behalf at trial. A Witness Statement is, I am told, in existence. In these circumstances and given the consent of Mr Chan to this part of the order, I grant leave to the plaintiff to adduce this evidence.

Vacating of trial dates

11. Mr Ho fairly submitted that it was only in the event of orders being made for discovery and other matters that the trial dates may have been at risk. In view of my decision on the orders sought, it is unnecessary to consider further this aspect. The trial of the action will take place on 17 December 2001.

Costs

12. Apart from those parts of the summons which were consented to by Mr Chan, the plaintiff has failed in her other applications. In these circumstances, the right order for costs is that the plaintiff is to bear the defendant's costs of and occasioned by this application, such costs to be in any event.