HCA 1425/2015
[2021] HKCFI 3436
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1425 OF 2015
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BETWEEN
Wang Rongan
Plaintiff
and
Silver International Investment Limited
1st Defendant
(銀駿國際投資有限公司)
Or Leung Chit (柯良節)
2nd Defendant
Or Sau Lai (柯秀麗)
3rd Defendant
China Construction Bank (Asia)
4th Defendant
Corporation Limited
(discontinued)
(中國建設銀行(亞洲)股份有限公司)
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Before: Hon Ng J in Chambers (Open to public)
Date of Hearing: 15 November 2021
Date of Judgment: 17 November 2021
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J U D G M E N T
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1. The trial of this Action is scheduled to commence on 23 November 2021.
2. On 15 October 2021, the Plaintiff belatedly filed the 4th Affirmation of Cheung Ka Wai, a partner of his solicitors, to restore his application by Summons dated 14 February 2020 for leave to all his witnesses, 6 factual (including himself) and 1 PRC legal expert, to give evidence at the trial by way of video-conferencing facilities (“VCF Application ”). The Plaintiff’s PRC legal expert witness was Professor Xiao Yongping (“Professor Xiao ”). By a Judgment handed down on 29 October 2021, this court dismissed the VCF Application (“VCF Judgment ”).
3. Professor Xiao was informed about the VCF Judgment. On 3 November 2021, he indicated that he could not act any further as the Plaintiff’s expert witness as his application for leave to come to Hong Kong for a month to attend the trial was rejected by the Personnel Department of his University.
4. The effect of Mr Xiao ceasing to be the Plaintiff’s expert and not attending the trial is that his opinion, as expressed in his expert report dated as early as 27 December 2019 and in the joint expert report dated as early as 23 January 2020, which was jointly prepared by Professor Xiao and Ms Xiong Daikun (“Ms Xiong ”), the Defendants’ PRC legal expert, after a “without prejudice” meeting of the two, is inadmissible at the trial.
5. There is before this court yet another last-minute application by the Plaintiff by Summons dated 9 November 2021 for (i) leave to change his PRC legal expert witness from Professor Xiao to Mr Tan Yueqi (“Mr Tan ”) and (ii) leave to adduce the expert report prepared by Mr Tan dated 8 November 2021 (“Summons ”).
6. What Mr Tan did in his expert report is that, in 1 paragraph, he simply says he agrees with and wholly adopts all of Professor Xiao’s opinion as expressed in the latter’s expert report and the joint expert report as his own expert opinion in this case. There was no attempt to comply with this court’s expert directions given on 9 October 2019 (“expert directions ”) as to meeting with the Defendants’ expert on a “without prejudice” basis or the preparation of a joint report identifying those parts of their expert evidence which they have reached a common opinion and those which they have not and stating the reasons for their disagreement. It is clear that what the Plaintiff seeks to do is to re-introduce at the trial Professor Xiao’s expert opinion by the backdoor.
7. In the VCF Judgment, this court has made it abundantly clear that post CJR, a late interlocutory application may be dismissed on the basis of delay alone. The reason is inter alia that last-minute pre-trial applications disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications.
8. In the present case, this last-minute application by the Plaintiff may also disrupt the Defendants’ preparation for the trial since, if the application is allowed, the Defendants’ legal team may have to devote extra time and effort in arranging another “without prejudice” meeting between Mr Tan and Ms Xiong and in taking follow-up action after the meeting.
9. For reasons set out in paragraphs 12 and 15 of the Defendants’ Submissions, which this court totally agrees, the manner in which the Plaintiff conducts this litigation is appalling and that any prejudice which may be caused to him as a result of the dismissal of this application would be completely brought upon by the Plaintiff himself and himself alone.
10. All of the above will be reflected in the costs Order to be made by this court.
11. The principles to be applied in determining applications to change an expert witness has been helpfully summarised by Mr Justice Bharwaney in Law Chung Fai v Lam Ming Kuen
“(a) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of the underlying objectives of the recent civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.
(b) In the exercise of its powers of case management, the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties.
…
(h) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.
…
(j) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.”
12. These principles are not in dispute. The Defendants do emphasise that the court will only exercise its case management powers to allow a party to change his expert if it is proper and in the interest of justice to do so and if the other party would not suffer prejudice which cannot be compensated by costs. This court agrees.
13. The Defendant relies on HKSAR v Kissel [2014] 1 HKLRD 460 for the proposition that one expert is not entitled to rely on another expert’s evidence if the evidence sought to be relied on relates to a contested issue in the case. At [142], Yeung VP observed:
“ 142. In our view, where an opinion by an expert is based on the reports of others and if the reports will not be proved by other evidence, then whether the reports are described as irrelevant, or having no weight, the better approach is to exclude those reports as evidence to avoid the danger that they may unduly influence the jury. An expert should not be allowed simply to reproduce another expert’s opinion as a support to his own conclusion or just to echo other experts’ opinions to reinforce his own when these opinions were prepared for the purpose of litigation and were related to a contested issue in the case.” (emphasis added)
14. In this court’s view, that proposition is clearly apt to apply in criminal trials in which there is a danger of jurors being unduly influenced by other experts’ reports which are themselves not admitted in evidence but are simply reproduced by an expert who does testify. There is no such danger in the present case. This court is very conscious that Professor Xiao is not an expert witness in this case and his expert opinion is simply not in evidence. Whatever weight, if any, that this court may be urged to attribute to Professor Xiao’s opinion by virtue of eg his status in the PRC legal field will not be taken into account in assessing the expert evidence at trial.
15. In the present case, there is evidence to show that Professor Xiao is unable or unwilling to come to Hong Kong to attend the trial and there is nothing the Plaintiff could do in the circumstances to compel Professor Xiao to come. This is not a case of expert shopping where a party is unsatisfied with the opinion of one expert and seeks to engage another expert, whose opinion is more favourable, in his place, as alleged in Chinachem Charitable Foundation Ltd v Chan Chun Chuen [2009] 5 HKC 190.
16. It is accepted by both sides that the position of the PRC law will be one of the contested issues at trial and expert evidence is crucial. Although the issue about PRC law is raised by the Defendants and the burden of proof is on them, it would still be prejudicial to the Plaintiff if he is unable to adduce expert evidence to counter the Defendants’. Mr Tan’s expert report wholly adopts the opinion of Professor Xiao in his Report as well as the Joint Expert Report without further comment. There is nothing new for the Defendants to respond to, although they may wish to explore at the trial the way in which Mr Tan was able to wholeheartedly adopt Professor’s Xiao’s opinion in 2 expert reports in just a few days’ time and without first meeting Ms Xiong. This will require additional work on the part of the Defendants’ legal team but unlikely to be much.
17. The Defendants submit that allowing the present application means the Plaintiff will be effectively calling two experts on the same issue against the Defendants’ one expert, thereby causing them prejudice and unfairness which cannot be adequately compensated by costs. This court does not see why that should be so. The Plaintiff will still be putting forward 1 expert and 1 set of expert evidence and the Defendants will still be cross-examining 1 expert and challenging the same set of expert evidence.
18. To conclude, bearing in mind fairness between the parties, the absence of irreparable prejudice to the Defendants, the fact that the trial of the present action was already adjourned once owing to the Covid-19 pandemic and it is wholly undesirable for the administration of justice if this trial is to be adjourned again, this court is of the view that it is proper and in the interest of justice to accede to the Plaintiff’s application, albeit reluctantly.
19. For the above reasons, the Plaintiff’s application is hereby allowed. This however is on condition that Mr Tan do attend a “without prejudice” meeting with Ms Xiong as soon as practicable if so required by the Defendants.
20. The parties have made their submissions on costs. In view of the nature and lateness of the application, as well as the appalling conduct of the Plaintiff, this court agrees with Mr Tong SC and hereby orders that the Plaintiff should bear:
(1) all costs in relation to the proposed expert evidence of Professor Xiao including his expert report and his joint expert meeting with Ms Xiong;
(2) all costs of and occasioned by the Summons, including the costs of this hearing,
to be taxed if not agreed on an indemnity basis and paid by the Plaintiff to the Defendants forthwith, certificate for 2 counsel.
(Peter Ng)
Mr Kenneth C L Chan and Mr Herbert Leung, instructed by Kelvin Cheung & Co, for the Plaintiff
Mr Ronny Tong, SC and Mr Lawrence Cheung, instructed by Patrick Mak & Tse, for the 1st, 2nd and 3rd Defendants