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HCA 2708/2016
[2020] HKCFI 2626
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2708 OF 2016
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| BETWEEN |
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LAI DOMINIC YUK TSUN |
Plaintiff |
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HANWOOD ENTERPRISES LIMITED
(恒域企業有限公司) |
1st Defendant |
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YIP CHUN (葉蓁) |
2nd Defendant |
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Before: Mr Recorder Pow SC in Chambers
Date of Hearing: 6 October 2020
Date of Decision: 6 October 2020
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DECISION
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1. The 2nd Defendant acts in person and is appealing against the decision of Master Tsui refusing her application for specific discovery.
2. The 2nd Defendant is seeking leave to rely on “new evidence” not placed before Master Tsui. For this purpose, the 2nd Defendant issued a summons before Master Chow seeking to file “new evidence”. This summons is due to be heard on 18 November 2020. The application should have been made before me, the judge hearing the appeal. Acting in person, the 2nd Defendant did not understand the correct procedure. In any event, the Plaintiff is contended that I shall now hear the 2nd Defendant’s application for adducing “new evidence” to be used in this appeal as if the application has been made before me.
3. Miss Lee, counsel for the Plaintiff argues that the 2nd Defendant’s application cannot satisfy Order 58 r.1(5) which requires the satisfaction of the Ladd v Marshall 3 criteria for admission of new evidence on appeal. The focus is on the 1st requirement: that the evidence could not have been obtained with reasonable diligence for use at the hearing below. Miss Lee is not disputing on the 2nd and 3rd requirements.
4. In support of the summons to be heard by Master Chow, the 2nd Defendant has filed 2 affirmations, one dated 24 September 2020 and the other 28 September 2020. They are now before me. The 2nd Defendant repeats her complaint that she had never received the Plaintiff’s 1st affirmation at any time before 19 June 2020 which was the hearing date before Master Tsui. She had told Master Tsui about it but was ignored.
5. In fact, Master Tsui considered that the documents had been served at the address of the 2nd Defendant and thus rejected the 2nd Defendant’s request for opportunity to respond to the Plaintiff’s 1st affirmation. In the end, Master Tsui relied on the Plaintiff’s 1st affirmation as one of the grounds for her decision.
6. According to an affirmation of service from Mr. Poon dated 19 March 2020, he said he attempted to serve documents including the Plaintiff’s 1st affirmation at the office of the 2nd Defendant on 18 March 2020. The staff of the 2nd Defendant refused to accept service but he left the documents at the office.
7. The 2nd Defendant said she was not in Hong Kong at the time. According to what she was told by her colleagues, they had told the document server that they refused to accept the documents and that the documents were not left in the 2nd Defendant’s office at all. The 2nd Defendant said she can ask her colleagues to give evidence about that. They are still working for her. Their evidence would therefore contradict the evidence of service by Mr Poon.
8. Miss Lee argued that the 2nd Defendant could have adduced evidence from these colleagues on 19 June 2020 which she did not. I cannot agree. It is the 2nd Defendant’s evidence that no documents were left at her office on 18 March 2020. She did not even know that the Specific Discovery application would be heard on 19 June 2020. She went to court that day because of another summons issued by the Plaintiff seeking leave to adduce the Plaintiff’s 2nd affirmation which summons was returnable on 19 June 2020. Therefore, the 2nd Defendant could not have anticipated that she need to prepare evidence to challenge Poon’s service affirmation on 19 June 2020.
9. The 2nd Defendant also points out that the Plaintiff’s affirmation was prepared on 3 March 2020. Under the previous court order directing the filing of evidence in respect of the Specific Discovery application, the Plaintiff was to file his affirmation in opposition 28 days after the 2nd Defendant’s affirmation. The 2nd Defendant filed her affirmation on 10 January 2020. 28 days thereafter means 7 February 2020. The Plaintiff’s 1st affirmation should have been filed by 7 February 2020. That would be before the imposition of the GAP period on 10 February 2020. The Plaintiff’s 1st affirmation was thus filed without leave. Master Tsui should not have relied on this affirmation according to the 2nd Defendant’s argument.
10. In order to decide on whether Ladd v Marshall criterion (1) is established, I must first resolve the disputed evidence of service between Mr. Poon and staff members of the 2nd Defendant. Due to the fact the 2nd Defendant is acting in person, understandably, she may not understand the real focus. In support of her application to rely on new evidence, she needs to adduce affirmations from her colleagues giving their evidence that no documents were left at the 2nd Defendant’s office on 18 March 2020.
11. Then, such dispute of fact can only be resolved under cross-examination of Poon and these colleagues. Only then would I be able to find whether documents had in fact been left at the 2nd Defendant’s office on 18 March 2020. If I find that they were, then the Plaintiff will be right in saying that Ladd v Marshall criterion (1) is not satisfied. On the other hand, if I find that documents had not been left at the 2nd Defendant’s office, then when the 2nd Defendant returned to HK and after her quarantine period ended on 15 June 2020, the 2nd Defendant would have no knowledge of the P’s 1st affirmation and its contents. Then, it can be said that the new evidence could not have been obtained with reasonable diligence for use at the hearing below.
12. In the circumstances, I must allow the 2nd Defendant the opportunity to ventilate this issue. This means that the appeal cannot be heard today before determining whether the 2nd Defendant should be allowed to rely on new evidence. I have to adjourn the hearing of this appeal and give directions on further conduct.
13. The 2nd Defendant shall file and serve affirmation evidence from her 4 colleagues on the circumstances of the attempted service of documents at the 2nd Defendant’s office on 18 March 2020 within 7 days from the date hereof.
14. The Plaintiff shall file and serve affirmation of Poon in reply (if so wish) within 7 days thereafter.
15. The aforementioned deponents shall attend the adjourned hearing of the appeal for cross-examination.
16. The 2nd Defendant shall also file and serve an affirmation setting out the “new evidence” which she intends to rely on for the hearing of the appeal within 14 days from the date hereof. The filing of this affirmation does not mean that leave has been granted to the 2nd Defendant to rely on such evidence at the hearing of the appeal. That would have to be determined after the court resolves the factual disputes in relation to service of documents on 18 March 2020.
17. The Plaintiff be given leave to file and serve an affirmation in reply within 28 days from the date of service of the 2nd Defendant’s affirmation. In the event that the court allows the 2nd Defendant to rely on the “new evidence” in the hearing of her appeal, the Plaintiff would have liberty to rely on this affirmation of the Plaintiff in reply to such new evidence.
18. I adjourn the hearing of this appeal to a date to be fixed with one day reserved.
19. As a result of the development today and my orders aforesaid, I allow the 2nd Defendant to withdraw her summons returnable before Master Chow on 18 November 2020. The said hearing shall thus be vacated. I will make no order of cost on the withdrawal of the summons.
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(Jason Pow SC ) |
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Recorder of the Court of First
Instance of High Court |
Ms Rosa Lee, instructed by Nixon Peabody CWL, for the Plaintiff
The 1st Defendant was not represented and did not appear
The 2nd Defendant appeared in person
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