LIU HON WONG AND OTHERS v. LIU CHEE KWAN AND ANOTHER

HCA 953/2017

[2022] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 953 OF 2017

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REASONS FOR DECISION

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1.  The pre-trial review (“the PTR”)  in this case took place before me on 10 October 2022.  The trial would also be before me and will start on 15 November 2022, with 9 days reserved.

2.  The following summonses (“the 3 Summonses”)  are placed before me in the PTR:

(1)  the plaintiffs’ (“Ps”)  summons filed on 16 August 2022 (“the Amendment Summons”)  for leave to re-amend the Amended Writ of Summons and Amended Statement of Claim as per the draft Re-Amended Writ of Summons and the draft Re-Amended Statement of Claim annexed to the Amendment Summons;

(2)  Ps’ summons filed on 16 August 2022 (“the Discovery Summons”)  for leave to file and serve their 4^th and 5^th Supplemental Lists of Documents (“4^th SLOD” and “5^th SLOD” respectively); and

(3)  Ps’ summons filed on 30 August 2022 (“the VCF Summons”)  for leave for Liu Tse Wah (i.e. the 2^nd plaintiff herein (“P2”)  in his own personal capacity, and the 3^rd plaintiff herein in the capacity of the administrator of the estate of Liu Hon Kee Evan alias Liu Hon Kee alias Evan Hon-Kee Liu, deceased)  to give evidence by Video-Conferencing Facilities (“VCF”)  during the trial.

3.  In the PTR, Ps are represented by Mr Ian Chau, and the defendants (“Ds”)  are represented by Mr James Wong.  All the 3 Summonses are opposed by the defendants (“Ds”).

4.  Having considered the evidence relating to the 3 Summonses and the parties’ respective submissions, I dismissed the 3 Summonses with costs to Ds in any event.  Those costs are to be taxed on an indemnity basis if not agreed.  These are my reasons for the decision.

Background

5.  This is a case concerning Liu Wing Sing Tong (“the Tong”), and 5 “Fongs”.  Ps’ case is that the 1^st defendant (“D1”)  and/or the 2^nd defendant (“D2”), in fiduciary roles, have breached their duties with regard to various payments and the management of various pieces of land.  Ps also claim that Ds have failed to provide some documents to them.  Ps further claim that a purported resolution of the Tong authorizing the payment of legal fees of this action is invalid.

6.  The 1^st and the 2^nd plaintiffs (“P1” and “P2” respectively)  are members of the Tong.

7.  At all material times, D1 and D2 are co-managers of the Tong.

8.  Since this is an interlocutory decision concerning the 3 Summonses only, I would only mention the matters which are relevant to the disposal of these summonses in this decision.

9.  Ps issued the Writ on Summons with a Statement of Claim annexed thereto on 20 April 2017.  The Writ of Summons and the Statement of Claim were amended with leave from the court on 23 October 2018.

10.  On 24 February 2021, after reviewing Ps’ Listing Questionnaire filed on 23 February 2021 (“Ps’ LQ”)  and Ds’ Listing Questionnaire filed on 18 February 2021, the court granted leave to Ps to set down this case for a 9-day trial, with a pre-trial review before the trial judge on a date 12 weeks before the commencement of the trial.

11.  In Ps’ LQ, the solicitor acting for Ps having the conduct of this case has confirmed the following:

(1)  Ps’ pleadings are in order and require no amendment.

(2)  No further interlocutory application(s)  will be taken out by Ps.

(3)  Discovery has been completed.

(4)  All steps that ought to be taken to prepare Ps’ case for trial have been duly taken place.

12.  On 22 April 2021, the parties’ respective legal representatives attended the office of the Deputy Clerk of Court (Civil)  and fixed the trial dates and the PTR date.  The PTR has been scheduled to take place on 22 August 2022, and the trial will take place on 15 November 2022 (with 9 days reserved).

13.  Just a few days before the scheduled PTR, on 16 August 2022, Ps took out the Amendment Summons and the Discovery Summons.  Ps have not filed any affidavit or affirmation in support of the Amendment Summons.  Only one affirmation made by an assistant solicitor working in the firm representing Ps in this action, i.e. the Affirmation of Liu Ho Yee (“H Y Liu”)  dated 16 August 2022 (“the Discovery Affirmation”), has been filed in support of the Discovery Summons.

14.  As a result of these two summonses taken out by Ps, after some discussion, on 19 August 2022, the parties agreed that the two summonses be adjourned for arguments, and the parties would be given some time to file evidence in relation to these two summonses.  The PTR would be adjourned to a date after the disposal of the two summonses.

15.  On the same date, the court accepted the directions jointly proposed by the parties, but directed that the substantive hearing of the two summonses should take place before the trial judge.

16.  On 30 August 2022, Ps took out the VCF Summons and filed the 2^nd Affirmation of H Y Liu dated 30 August 2022 (“the VCF Affirmation”)  in support of the summons.

17.  On 31 August 2022, I directed, inter alia, that the PTR shall take place before me on 10 October 2022, and the substantive arguments concerning the 3 Summonses would be heard in the PTR.

The principles

18.  The issues in a trial are defined by pleadings, not by evidence.  One cannot slip in an unpleaded issue by saying that there is evidence on the issue.  As said by Ma CJ in Kwok Chin Wing v 21 Holdings Ltd[1]:-

“21. It should by now really be quite unnecessary to issue yet another reminder on the rationale behind pleadings. The basic objective is fairly and precisely to inform the other party or parties in the litigation of the stance of the pleading party (in other words, that party’s case)  so that proper preparation is made possible, and to ensure that time and effort are not expended unnecessarily on other issues:- Wing Hang Bank Limited v Crystal Jet International Limited [2005] 2 HKLRD 795, 799 [6(1)]. It is the pleadings that will define the issues in a trial and dictate the course of proceedings both before and at trial. Where witnesses are involved, it will be the pleaded issues that define the scope of the evidence, and not the other way round. In other words, it will not be acceptable for unpleaded issues to be raised out of the evidence which is to be or has been adduced. As the Court of Appeal remarked in Wing Hang Bank Limited v Crystal Jet International Limited:-

‘(2)  In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be “slipped in” when evidence is being given in the hope that the other side is not sufficiently alert to object.’

22. …… one does not sift through the evidence adduced in a trial in the hope that something was said that can conceivably found a cause of action. Issues, I would reiterate, must be properly pleaded unless for some reason the pleadings have assumed a less significant role in the proceedings.” (Emphasis added)

19.  Accordingly, if Ps intend to put forward any claim, Ps must plead the same clearly and unequivocally in their Statement of Claim.  Ps cannot say that an unpleaded matter is an issue in these proceedings because there is evidence on that matter.  Ds would only be required to meet Ps’ case as pleaded.  Ds would not be required to fight against any unpleaded claim.

20.  The 3 Summonses are applications taken out by Ps at a very late stage in these proceedings.  There can be no doubt that these are last minute pre-trial applications.  It is trite that the court may refuse an application by reason of the delay in taking out the application, and the application can be dismissed on the ground of delay alone.

21.  In PD 5.2, it is stated:

“31. The later in time and the closer to a trial date an application is made, the less likely it is for the Court to entertain it.

……

34. A PTR is not an extension of CMC.  The Court expects a case to be ready for trial.  Late interlocutory applications may be dismissed on the basis of delay alone.”

22.  In Wise Union Industries Ltd v Hong Kong Science and Technology Parks Corp[2], A Cheung J (as he then was)  made observations on post-CJR considerations.  The learned judge said: -

“4. As Mr Fok pointed out, this delay, viewed in the context of a judicial review application which requires an application for leave to apply for judicial review to be taken out promptly, and in any event within three months from the date when the grounds first appeared, was a lengthy one, and I should immediately add that there is no satisfactory explanation from the applicants regarding the delay.

……

9. Talking about prejudice, I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that is to be paid for by the other side)  would mean that there is no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there is no prejudice. The unenviable position that such a party finds himself in is in itself a prejudice.” (Emphasis added)

23.  In Li Xiao Yun v China Gas Holdings Limited[3], the Court of Appeal dismissed an appeal against the trial judge’s refusal of a last minute pre-trial application to add new defendants and to amend the pleadings on the ground of delay and that the trial date would very likely to be derailed.  In that case, Lam JA (as he then was)  said: -

“18. Unmeritorious appeals against case management decisions, at least last minute urgent appeals, are to be deplored since not only are they satellite litigation increasing the costs of the judicial process, they also tend to disrupt the preparation for trial on the part of those representing the opposing party. It is wholly inconsistent with the spirit of the underlying objectives in Order 1A Rule 1 and the duties of the parties and their lawyers under Order 1A Rule 3. Last minute pre-trial applications also 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 application. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs”. (Emphasis added)

24.  In Waddington Limited v Chan Chun Hoo Thomas[4], DHCJ Lok (as he then was)  reiterated that late applications could be dismissed on the basis of  delay alone.  In that case, the learned judge said:-

“51. In this action, the parties have taken out a lot of late applications shortly before the PTR. This practice is highly unsatisfactory and should be discouraged. Apart from the prejudice likely to be caused to the parties by such late applications including the possible adjournment of the trial, there is serious disruption to the court diary as the court has to struggle to find some time during the limited time before the trial to hear the applications. ……

53. Express warning about late applications has already been given in §34 of Practice Direction 5.2, and practitioners should be reminded that late applications may be dismissed on the basis of delay alone. Unless there are exceptional circumstances and there are good reasons for the delay, one should not expect the courts to grant any late applications taken out shortly before the PTR.” (Emphasis added)

25.  In Hongkong Changyi Real Estate Development Ltd v Neo-China (Group)  Infrastructure Investment Ltd[5], Mimmie Chan J said:-

“1. Nearly 5 years after the implementation of the Civil Justice Reform, parties should be under no doubt by now that the courts will have no hesitation now to reject a late application, made when trial is imminent, for either amendment of pleadings, discovery or the filing of witness statements, which application has the effect of disrupting the preparation for trial with the risk of milestone dates such as a pretrial review or the trial dates themselves being affected. Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted…. The applicant for leave must establish, by affidavit evidence, exceptional circumstances to explain and justify the delay. Change of the legal team has rarely, if ever, been accepted as justification for a last minute change of case or amendment of pleadings, which would result in or necessitate a response from the other side which it cannot in all fairness be expected to do in the availability of time before trial. PD 5.2 makes it clear that change of the legal team will not be treated as exceptional circumstances.” (Emphasis added)

26.  It is no answer to contend that the other party should use the time leading up to trial to meet the new case by filing consequential amendments and further evidence in response.  There is no reason to require the innocent party to “squeeze its investigation, preparation and decision-making processes all into the coming few weeks”.[6]

27.  If allowing a last minute pre-trial application would derail the trial dates or prolong the trial beyond the time allocated, the court may refuse leave, even if it means that the applicant would have great difficulty in establishing his case.[7]

Amendment Summons

28.  One of the claims put forward by Ps in the Amended Statement of Claim is that Ds, in breach of their duties as managers, let out the following properties owned by the Tong (“the Properties”)  at undervalue:

(1)  Lot No. 369 in DD 51 (“the 1^st Property”);

(2)  Shop on Ground Floor (comprising the Front Portion and Rear Portion)  and Cockloft, No. 45 San Fung Avenue, Sheung Shui, New Territories (“the 2^nd Property”); and

(3)  Shop on Ground Floor and Cockloft, No. 20 San Hong Street, Sheung Shui, New Territories (“the 3^rd Property”).

29.  The relevant lease periods concerning this claim have been set out in [40] of the Amended Statement of Claim.  In [40(f)] of the Amended Statement of Claim, it is pleaded:

“As at the date of issue of this Amended Statement of Claim, the Properties are still being let out below market rent and the 1^st and/or 2^nd Plaintiffs continue to suffer loss and damage. The 1^st and/or 2^nd Plaintiffs will only be able to provide further particulars of loss and damage upon seeking discovery from the 1^st and the 2^nd Defendants, and the adducing of expert evidence.”

30.  According to Mr Chau, the purposes of the proposed re-amendments are as follows:

(1)  Particularising the market rent which on Ps’ case should have been obtained, according to Ps’ Expert in expert reports filed in this action.

(2)  Adding 3 further lease periods, being:

(a)  1/4/2019 to 31/3/2022 for the 1^st Property (“1^st Further Lease”)

(b)  1/5/2018 to 30/4/2020 for the Front Portion of the 2^nd Property (“2^nd Further Lease”); and

(c)  1/1/2019 to 31/12/2021 for the Rear Portion of the 2^nd Property (“the 3^rd Further Lease”).

  (collectively, the “Further Leases”)

31.  Mr Chau submits that the proposed re-amendments are a technical matter.  The purpose of these proposed re-amendments is to update the pleadings regarding the claim for letting the properties at undervalue.  In [40(f)] of the Amended Statement of Claim, it has already been said that Ps would provide further particulars of this claim upon seeking discovery from Ds and adducing expert evidence.  The Further Leases were first provided by Ds by their solicitors’ letters dated 11 June 2019 and 11 November 2019.  Ds in fact always envisaged that the Further Leases would be the subject of these proceedings, and the parties have acted on that basis.

(1)  In Ds’ Letter dated 11 November 2019, Ds proposed that the valuation dates would include 1 April 2019 for the 1^st Property; 1 April 2019 for the Front Portion of the 2^nd Property; and 1 January 2019 for the Rear Portion of the 2^nd Property (“New Valuation Dates”).  These dates were the days immediately after the leases pleaded in the Amended Statement of Claim ended. These dates must have been suggested on the basis that the Further Leases would be the subject matters of this action.

(2)  By consent, an Order dated 2 January 2020 was made for experts to give rent valuations for the New Valuation Dates. Ps’ and Ds’ Experts duly did so.

(3)  The Further Leases have been either mentioned (2^nd Further Lease and 3^rd Further Lease)  or even appended to Ds’ Expert reports (the 1^st Further Lease).

32.  Mr Wong submits that the Amendment Summons should not be allowed for the following reasons:

(1)  The proposed re-amendments are trying to introduce new causes of action which did not exists on the date of the writ.  Hence, the proposed re-amendments should not be allowed.[8]

(2)  In any event, there is no explanation (by affidavit/affirmation)  on the part of Ps as to the lateness of their application.  The Further Leases of which Ps now seek to add had been provided by Ds to Ps in 2019.  As the 9-day trial of the present case has been set down to commence on 15 November 2022, should the Amendment Summons be allowed, as a matter of fairness, leave must also be granted to Ds to amend their pleadings and to file further witness statement(s)  in light of the re-amendments made by Ps.  There is a substantial risk that the fixed dates of the trial would have to be vacated.

33.  In my view, the Eshelby rule would not be a sufficient reason for refusing Ps’ application as per the Amendment Summons.  In Hui Tze Ha (許紫霞), the sole executrix of the estate of Lam Yim (林炎), deceased v Ho Yuet Lin (何月蓮)[9], I said (footnotes omitted):-

“43. Traditionally, an amendment takes effect from the date of the original document which it amends. As such, it was considered that without the defendant’s consent, a plaintiff could not amend his writ by adding a cause of action which has accrued to him since the issue of the writ (ie the Eshelby rule).

44. However, since the Civil Justice Reform in 2009, a much more flexible approach has been adopted towards pleading of post-writ matters, which is reflected in the following:

(1)  The Rules of the High Court now provide the following:

(a)  Order 18 rule 9 provides that a party may in any pleading plead any matter which has arisen at any time, whether before or since the issue of the writ.

(b)  Order 20 rule 5(1)  provides that the court may at any stage of the proceedings allow the plaintiff to amend his writ, or any party to amend his pleadings, on such terms as to costs or otherwise as may be just and in such manner (if any)  as it may direct.

(c)  Order 20 rule 5(5)  further provides that an amendment may be allowed notwithstanding that the effect of the amendment will be to add or substitute a new cause of action if the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed in the action by the party applying for leave to make the amendment.

(2)  In Chan Mei Lin v Lee Hong, Chu JA said:

‘25 … We would additionally observe that the court’s discretion under Order 20 rule 5(1)  is a wide one. The decision in Eshelby does not create an inflexible rule and the case has to be considered together with the discussions in subsequent decisions of the English Court of Appeal: see, for example, Vax Appliances Limited v. Hoover Plc [1990] RPC 656 at 661, and Hendry v. Chartsearch Ltd [1998] EWCA Civ 1276, at §§19-23; see also the discussions in Wing Siu Co Ltd v. Goldquest International Ltd [2003] 2 HKC 64 at §§9-18.’ (Emphasis added)

(3)  Recently, in Qianhai Xinhuakang Financial Holdings (Shenzhen)  Ltd v Chen Jiarong, after reviewing the authorities, Lok J said:

‘61. In fact, there are many reasons to favour the more flexible approach as laid down in Chan Mei Lin. First, it should have been the legislative intent of the new O 18 r 9 to give more flexibility to the court to deal with post-writ matters in pleadings. The express wording in the rule allows a party to “plead any matter, whether before or since the issue of the writ”. Second, the modern approach to litigation emphasises case management and efficient disposal of cases. If there is no prejudice to the counter-party such as depriving him of defence like limitation, provided that there is close connection between the original claim and the post-writ claim, there is no reason why the court should insist the party to commence a new cause of action to deal with the post-writ claim.’”

34.  If there is no other reason against Ps’ application as per the Amendment Summons, whether any post-writ causes of action would be defeated by the Eshelby rule can be a matter argued in the trial.  I would not debar Ps from raising any post-writ causes of action simply because those claims may offend the Eshelby rule.  That rule is not absolute, and a more flexible approach has been adopted by the court since the CJR in 2009.

35.  However, I would exercise my discretion against Ps and disallow Ps’ application for the following reasons:

(1)  Ps’ application for leave to re-amend the Amendment Statement of Claim is an extremely late application.  As submitted by Mr Wong, Ps have not even tried to explain the delay by any affidavit or affirmation.

(2)  It is undeniable that the Further Leases were provided by Ds to Ps in 2019.  At any time after 11 November 2019, Ps might make an application to re-amend the Amended Statement of Claim based upon the Further Leases.  However, Ps have not done so until 16 August 2022.

(3)  All the reports done by Ps’ expert were filed in January 2020.  In other words, Ps might propose any re-amendments to their Amended Statement of Claim based upon Ps’ expert reports at any time after January 2020.  This has not been done until 16 August 2022.

(4)  It is true that the parties have discussed that the New Valuation Dates be included in the expert evidence.  However, as said in the above, issues in a trial are defined by pleadings, not by evidence.  Unless and until Ps put forward any claim based upon the New Valuation Dates by amending the Amended Statement of Claim, Ds would not be required to do anything to meet any unpleaded case in Ps’ mind.

(5)  Ps’ LQ was filed on 23 February 2021.  By that time, Ps have already had all the materials enabling Ps to put forward the present proposed re-amendments. However, in the CMC held on 24 February 2021, instead of seeking leave to re-amend the Amended Statement of Claim, P gave the confirmations as set out in [11] above to the court by Ps’ LQ.  Based upon these confirmations, the court granted leave to Ps to set down this case for a 9-day trial.

(6)  Ps have not even tried to explain why Ps have changed the stance adopted by them as stated in Ps’ LQ.

(7)  Not only the Further Leases, but other issues would be introduced if the proposed re-amendments are allowed.  For example, in the Amended Statement of Claim, regarding the 1^st Property, it is pleaded that from 1/4/2013 to 31/3/2019, the market rent was HK$17,100.  However, in the draft Re-Amended Statement of Claim, it is pleaded that during the same period, there would be market rent and alternative marker rent, and the figures under these heads are substantially different from the one pleaded in the Amended Statement of Claim.

(8)  In my view, the proposed re-amendments are substantial.  If allowed, the length of the trial would be prolonged significantly, and there is a real risk that the trial cannot be finished within the time allocated.  Further, it would not be fair to Ds to require them to do all the preparation to meet these new issues within the coming few weeks.

(9)  Refusing the Amendment Summons would mean that Ps would not be allowed to pursue the issues set out in the proposed re-amendments.  However, with all the aforesaid in mind, I have to exercise my discretion against Ps.  With respect, Ps may only have themselves to blame for not putting forward the amendment application at a much earlier time.

The Discovery Summons

36.  Regarding the delay in taking out the Discovery Summons, the explanation provided in the Discovery Affirmation is as follows:

(1)  Upon further review of the documents provided by Ps, as part of the preparation works for trial, H Y Liu identified 15 documents as being relevant to the issues in dispute between the parties.  Accordingly, the 4^th SLOD was served on Ds’ solicitors by post on 28 July 2022.

(2)  Upon taking counsel’s advice regarding the 4^th SLOD, Ps are advised to further disclose 2 more documents by way of the 5^th SLOD.  The 5^th SLOD was therefore served on Ds’ solicitors by post on 8 August 2022.

37.  I must say that these explanations are unsatisfactory and I refuse to accept the same.  There is no reason why Ps’ legal team could not review the documents in Ps’ possession, custody or power, and disclose the documents now set out in the 4^th SLOD and in the 5^th SLOD (“the Additional Documents”)  at a much earlier time.  Further, nothing has been said to explain why Ps’ solicitor having the conduct of this case unequivocally confirmed that discovery had been completed in Ps’ LQ.

38.  The 1^st defendant (“D1”)  made an affirmation dated 9 September 2022 in opposition to the Discovery Summons.  The affirmation was made by D1 on behalf of himself and D2.  In the said affirmation, D1 has put forward two grounds in opposition to Ps’ application:

(1)  If the application is allowed, Ds would need time to have further legal advice from counsel in respect of the preparation and conduct of the case, and additional witness statements may be needed to deal with the Additional Documents disclosed by Ps at the eleventh hour.

(2)  The Additional Documents are not relevant and not necessary for the resolution of the disputes between the parties.  Including these documents would only waste time and costs.

39.  Having read D1’s affirmation, I understand that Ds’ primary position is that the Additional Documents are not relevant to the resolution of the issues in these proceedings.  Ds’ alternative position is that if leave is given to Ps to rely upon the Additional Documents in the trial, Ds would need time to have further consideration of the matter, and may need leave to file further witness statement(s)  to deal with the Additional Documents.

40.  By the 4^th SLOD and the 5^th SLOD, Ps have disclosed 17 items of documents.  Although Ds are of the view that the Additional Documents would not be relevant to the issues in the trial, it would not be unreasonable for Ds to have the alternative position as stated in the above.  It is understandable that if the Additional Documents are in, Ds may need time to consider the matter further and may need to seek leave to put in further witness statement(s)  to deal with the Additional Documents to play safe.

41.  In my view, it would not be fair to force Ds to squeeze their preparation in response to the Additional Documents all into the coming few weeks.  Further, if Ds would need time to prepare any witness statement(s)  to deal with the Additional Documents, there is a real risk that the trial may have to be adjourned.  There is no proper explanation as to why Ps only took out the Discovery Summons in the eleventh hour.  That is also no satisfactory explanation as to why Ps are now seeking to depart from the position as stated in Ps’ LQ (i.e. discovery has been completed).  Bearing all these in mind, I must exercise my discretion against Ps and dismiss the Discovery Summons.

VCF Summons

42.  The principles concerning giving evidence by VCF have been summarized by Anthony Chan J in Re Nobility School Limited[10], which are as follows:

(1)  The giving of evidence by VCF is an exception.

(2)  The starting point is that proceedings are conducted in court.  This is more important when it comes to a trial.

(3)  Sound reason is required to justify a departure from the starting point.

(4)  The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence.

(5)  The court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence.

(6)  Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court.

(7)  Costs and convenience may be important considerations which the court will have to weigh in the determination of the application.

(8)  Ultimately, it is a matter of judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the Underlying Objectives, any delay to the proceedings and practical considerations like the availability of the facilities (see PD 29).

43.  Although it is P2 who is seeking leave to allow him to give evidence in the trial through VCF, there is no affidavit or affirmation from him in support of the application.  There is not even a signed statement signed by P2 explaining why he would need to give evidence in the trial through VCF.  The only evidence adduced by Ps in support of this application is the VCF Affirmation made by H Y Liu. As per that affirmation:

(1)  P2 is now residing in London.

(2)  P2’s evidence “is important but relatively simple”[11].

(3)  P2 is the Group Financial Controller of Vinyl Factory Limited (“TVFL”).  P has been working in this company since 2003.  TVFL is a privately owned business with 9 subsidiary companies, operating various businesses including a hotel, a Vinyl pressing plant, retail businesses, and two e-commerce websites.  It is said that it would be very difficult for P2 to do his works remotely.

(4)  There are frequent cancellations of flights with extremely short notice given due to various matters in Heathrow Airport.  If a flight is cancelled on short notice, it may well be difficult to book another flight.  In that event, P2 may not be able to come to Hong Kong to give evidence in the trial.

(5)  With the autumn and winter season coming, there is a real chance that there would be another wave of Covid-19, and quarantine restrictions will be tightened before the trial.

(6)  P2 will be 59 years of age by December this year. The risk of infection at Heathrow Airport and on the flight is high, as they are crowded, enclosed spaces.

44.  In my view, there is no satisfactory reason justifying the application for leave to allow P2 to give evidence in the trial through VCF.

45.  Firstly, P2’s witness statement was filed on 25 July 2018.  He has been working in TVFL since 2003.  Covid-19 began to hit the world in early 2020.  By the time of Ps’ LQ, almost all the factors now being relied upon by P2 in support of the VCF Summons have already been there.  However, it has been confirmed in Ps’ LQ that no further interlocutory application(s)  will be taken out.  In other words, at the time of Ps’ LQ (i.e. February 2021), P2 had not thought about not coming back to Hong Kong to give evidence in the trial.  P2 has not told the court when he changed his mind.  There is also no evidence explaining why P2 has changed his mind.

46.  Secondly, P2 may be a very important employee in TVFL.  However, it is just common sense that every employee would have some annual leave each and every year.  The trial dates have been fixed on 22 April 2021 in the presence of the parties’ respective legal representatives.  Naturally, P2 could make some planning in advance, so that he could take leave and return to Hong Kong to give evidence in the trial in these proceedings.

47.  Thirdly, the pandemic is subsiding.  More and more people are now resuming international travelling.  The HKSAR Government has recently relaxed the quarantine restrictions.  Foreigners come to Hong Kong are no longer required to be quarantined in a hotel for any period.

48.  Fourthly, it is said that P2 may not be able to come to court to give evidence on time due to sudden cancellation of a flight, or sudden tightening of some quarantine restrictions before the trial, or sudden change of P2’s health condition before the trial (being infected by Covid-19 or otherwise).  With respect, all these are speculations.  P2 should make all reasonable arrangements to come to Hong Kong to give evidence in the trial.  If an unexpected event happens in future, and P2 is prevented from attending the trial in person as a result, the court will deal with that situation there and then.

49.  Fifthly, as admitted by Ps in the VCF Affirmation, P2 is in fact an important witness. That being the case, in the absence of any compelling reason, there should be no departure from the norm, i.e. witnesses should give evidence in court.

50.  For these reasons, I dismissed the VCF Summons.

Costs

51.  Costs of the 3 Summonses should follow the event.  As said by Lam JA (as he then was)  in Li Xiao Yun, last minute pre-trial application is a practice which must be discouraged.  Ps have not put forward any satisfactory reason to justify the lateness of the 3 Summonses.  In the circumstances, to show the court’s disapproval of this practice, I order indemnity costs against Ps. Since the trial will take place very soon, I order that these costs be to Ds in any event, to be taxed if not agreed.

Conclusion

52.  For these reasons, I made the decision as set out in [4] above.  I thank all counsel for the assistance rendered to the court.