CHAN YAN CHEONG, THE LAWFUL ATTORNEY OF CHAN YUEN CHOW, THE EXECUTOR UNDER THE WILL OF HO KAM KIU, DECEASED v. CHAN YAN SHUM

DCCJ 519/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 519 OF 2013

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DECISION

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The Application

1. The defendant took out two summonses on 17 and 18 June 2014 for leave to adduce an unsigned and undated supplementary witness statement of Madam Lo Shui Lin (盧穗蓮) and two psychiatric expert reports prepared by Dr David Chan dated 14 June 2014 and  Dr David Tsai dated 17 June 2014 (“the 1^st and 2^nd summonses”). 

2. Trial is supposed to commence today whilst the defendant made no application in the Pre Trial Review on 8 May 2014.  Both the 1^st and 2^nd summonses were heard today, on the first day of trial.

The defendant’s submissions

3. Mr Yuen, counsel for the defendant submitted the two summonses are interrelated.  The defendant came to a decision that he elects not to give oral testimony during trial because he has been and is suffering from some psychiatric illness, more particularly, suicidal ideation.  To explain his absence at trial, he applies to adduce two psychiatric expert reports to evidence his health and/or mental conditions.  Mr Yuen emphasized such application is also made with a view to avoid the court to draw adverse inference against the defendant. To remedy the situation, Madam Lo, the defendant’s wife was asked to adduce a supplementary witness statement at trial. 

4. Mr Yuen referred me to Lee Cheung Ching v Lok Hsiao Pei, John, HCA 978/2004, where a similar situation occurred.  DHCJ L Chan (as then he was) held that, in case of a real risk that stress produced by cross examination may result in angina, heart attack or even death, it is justifiable that the witness shall not be called on medical grounds and no adverse inference should be drawn against that witness by virtue of not giving evidence.

The plaintiff’s opposition

5. The 1^st and 2^nd summonses were strenuously opposed by Mr Ng, counsel for the plaintiff.

6. For the 1^st summons, Mr Ng has made clear that the plaintiff would not invite the court to draw any adverse inference against the defendant. As such, the plaintiff sees it unnecessary for the defendant to adduce the two psychiatric expert reports at trial.  Adducing the same serve no purpose because it is the choice of the defendant not to testify.  Mr Ng criticized such application was not taken out properly pursuant to Order 38 rule 36(1)(a) of the Rules of District Court.  Without specifically stated in the 2^nd summons to seek leave for both experts to testify at trial, the defendant is seeking an order to adduce the psychiatric expert reports only, Mr Ng submitted, the impromptu application by the defendant should not be allowed.  Nevertheless, in event the court grants leave, the plaintiff shall apply for leave to engage his medical expert to rebut the contents of the two psychiatric expert reports.

7. Mr Ng rebutted, the opinion of the two psychiatric expert reports were not consistent.  No suicidal intent was noted in Dr David Chan’s report, but was then noted in Dr David Tsai’s report (which was done 3 days after Dr David Chan’s report).

8. For the 2^nd summons, Mr Ng submitted, Madam Lo’s supplementary witness statement was objectionable because she gives speculations and at times, speaks for the defendant.  Quite a number of examples were neatly referred to in Mr Ng’s skeleton submissions and of which I do not intend to reproduce them here.

9. Mr Ng further submitted, the crucial issue of this action was a handwritten note drafted by Chan Yan Tong in a family meeting to evidence, inter alia, the defendant can occupy the property at no costs for an indefinite period (“the Note”).  It was not pleaded in the Defence that Madam Lo was present during the family meeting (see paragraph 7(2) of the Defence).

10. Thirdly, it was also known that Tang Chiu Ping, the contractor for the defendant is not going to give oral testimony as well.  Madam Lo’s supplementary witness statement shall not serve the purpose of giving evidence for Tang Chiu Ping by duplicating an almost identical paragraph in her witness statement.  The defendant shall, if so wish to give evidence on the renovation works done on the property, he should have issued a witness summons to Tang Chiu Ping to give evidence at trial instead.

11. Lastly, Mr Ng objected to adduce the photographs exhibited to Madam Lo’s supplementary witness statement.  Mr Yuen has fairly conceded the photographs were once contained in the list of documents.  The plaintiff’s solicitors invited the defendant to include them in the trial bundle, it was only the defendant’s solicitors failed respond to the invitation at time of compiling the trial bundle.

The defendant’s reply

12. Having heard the position of Mr Ng that the plaintiff would not invite the court to draw adverse inference against the defendant, Mr Yuen insisted the two medical expert reports should be adduced and both experts should be called at trial.

13. For the 2^nd summons, Mr Yuen has conceded to withdraw the following lines / paragraphs in Madam Lo’s supplementary witness statement:-

(i) Para 4:「據陳忍森的記憶，當時他亦出資了1萬元。」

(ii) Para 11:「事實上，於購入該物業時，陳忍森亦萬料不到陳忍就會於幾個月後，會突然要求他支付所謂的許可費。」

(iii) Para 13 and Para 14.

(iv) Para 16: 「但令陳忍森真正痛心的是…令陳忍森不勝唏噓。」

Analysis

The 1^st summons

14. I am satisfied leave should be granted to the defendant to adduce two psychiatric expert reports.

15. Albeit the plaintiff has undertaken not to invite the court the draw adverse inference against the defendant, it is pre mature for the court to conclude no adverse inference should be drawn against him for his absence at trial.  It is fair for the defendant to rely on the judgment of DHCJ L Chan (as then he was) in Lee Cheung Ching that the medical expert evidence should be tendered in this respect.

16. I note the defendant have not complied with Order 38 rule 36(1)(a) of the Rules of the District Court, yet applications of this kind, for absence of a witness at trial due to medical reasons stands out from the usual procedure.  It is understandable that the situation might have only surfaced at a very late stage.  After all, the defendant has taken out a summons for such directions.

17. The criticism of not stating an application to call both Dr David Chan and Dr David Tsai to testify can be remedied by amending the 1^st summons.  The plaintiff’s rights should not be deprived of an opportunity to cross examine the both experts when the court grants leave to adduce both psychiatric expert reports, especially, Mr Ng has pointed out the difference of opinions by both experts.

18. Having said that, in embarking on a balancing exercise and to be costs effective, I do not think it is necessary for the plaintiff to engage his own psychiatric expert to examine the defendant.  I agree with Mr Yuen’s suggestion that both psychiatric experts should be called after all factual witness has given evidence.

19. Nevertheless, I am alerted both the expert reports were done without furnishing a statement of truth by the makers.  Order 41A rule 2(1)(c) of the Rules of the District Court states:-

“The following documents must be verified by a statement of truth in accordance with this Order --- …. (c) an expert report” ;

Further, Order 41A rule 7 of the Rules of District Court states:-

“If the maker of a witness statement or expert report fails to verify the witness statement or expert report by a statement of truth, the witness statement or expert report is not admissible in evidence unless otherwise ordered by the Court.”

20. At time of the application, I am not aware Mr Ng has taken issue, nonetheless, I shall give directions, (i) subject to the filing of the statement of truth of Dr David Chan and Dr David Tsai, leave be granted to the defendant to adduce the psychiatric expert report of both experts dated 14 June 2014 and 17 June 2014 respectively and both experts be called to give oral testimony at trial of this action; and (ii) leave be granted to the defendant to amend the 1^st summons within 3 days.

The 2^nd summons

21. The defendant has failed to comply with Order 41A rule 2(1)(b) of the Rules of District Court: not only Madam Lo’s supplementary witness statement was unsigned, it was not furnished with a statement of truth.  Solely on this point, the defendant’s application is bound to fail. Again, I am not aware Mr Ng has taken issue, I shall consider the application as if it has been duly complied with such order.

22. Having heard submissions by both parties, I agree with Mr Ng that leave should not be granted to the defendant to adduce Madam Lo’s supplementary witness statement.

23. I agree with Mr Ng that the content of Madam Lo’s supplementary witness statement contains evidence that are irrelevant and ought to be included.  (See paragraph 38/2A/13 of The Hong Kong Civil Procedure 2014)  I accept Mr Ng’s submissions that in paragraphs 3 – 6, 8 – 9, 11 – 17 therein records speculations by Madam Lo which amounts to more than hearsay evidence. Furthermore, paragraph 7(2) of the Defence did not state Madam Lo was present at the family meeting, I fail to see Madam Lo could assist the defendant in giving evidence of the discussions or events leading to the signing of the Note.

24. I am not satisfied those could be remedied by the concession by Mr Yuen that some parts of it (as stated in paragraph 13 above) should be withdrawn.

25. On the part of evidence relating to renovation works done, I agree with Mr Ng that the defendant should issue a witness summons to Tang Chiu Ping to give oral evidence instead of asking Madam Lo to testify for him.

26. With regard to the photographs, it is the defendant’s choice not to include them in the bundle.

27. I hold the same view as Mr Ng did, Madam Lo’s supplementary witness statement could cause prejudice to the plaintiff.  I am driven to the conclusion that the 2^nd summons should be dismissed.

Costs

28. I have heard submissions for costs from both parties, I award costs of both the 1^st and 2^nd summonses be paid by the defendant to the plaintiff, with certificate of counsel, to be taxed if not agreed.