CHEUNG WEI MAN VIVIEN AND ANOTHER v. CENTALINE PROPERTY AGENCY LTD AND OTHERS

HCA 286/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 286 OF 2000

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D E C I S I O N

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1. There are a couple of applications before me. Directions have been made by consent for the future conduct regarding the summons for discovery taken out by the 2nd and 3rd Defendants. In respect of the withdrawal of admissions by the 1st Defendant and the 2nd and 3rd Defendants, the Plaintiff did not oppose leave being granted and I have made the orders granting the Defendants leave to withdraw their respective admissions at the hearing on 15 September 2003. The only outstanding question is costs of the applications. The only substantive dispute between the parties is about the admissibility of an Affirmation of Tung Chooi Chan ["Tung"] made on 23 June 2000.

Admissibility of Tung's Affirmation ["the Affirmation"]

2. The Plaintiffs wished to rely on the Affirmation at the trial. Instead of making an application under Order 38 Rule 2 for the Affirmation to be read at the trial, they filed a hearsay notice on 31 March 2003 in respect of that document. The Plaintiffs said Tung was outside jurisdiction and therefore could not be called as a witness at the trial.

3. This prompted the Defendants to take out two applications. On 23 May 2003, the 1st Defendant issued a summons asking for, inter alia, an order that the Affirmation shall not be read and/or admitted at the trial unless Tung is available for cross-examination. On 2 July 2003, the 2nd and 3rd Defendants issued a summons asking for, inter alia, that the Affirmation shall not be read and/or admitted as evidence at the trial without leave of the court.

4. Although the Affirmation was a short one, it related to one very important factual dispute between the parties. The Plaintiffs said the 3rd Defendant was present at a site inspection and certain representations were made by him whilst the defence denied that he was present. In the Affirmation, Tung who was a nanny employed by the Plaintiffs at the time of the site inspection, said the 3rd Defendant was present but she did not pay attention to what was discussed.

5. Tung had since then left the employment of the Plaintiffs and returned to live in Malaysia. She was unwilling to come back to Hong Kong to testify. The Plaintiffs contacted her in June 2000 to obtain the Affirmation from her. Since then, the Plaintiffs had not contacted her with a view to secure her attendance at the trial to give evidence. It seems that the idea of taking her evidence by video-link had not been explored by the Plaintiffs although Mr Lo, counsel for the Plaintiffs, told the court that he was instructed that Tung was unwilling to be subject to cross-examination.

6. In my judgment, the proper course a litigant should adopt if he intends to rely on an affirmation or affidavit at the trial without calling the maker is to make an application under Order 38 Rule 2 for directions. This should be done before application is made for the case to be set down as this is a matter pertinent to the readiness of the case for trial. As stated in the commentary at para. 38/2/1 of the Hong Kong Civil Procedure 2002, this is usually dealt with at the hearing of the summons for directions. The commentary continued,

"It is not practicable to make such an order where the evidence will be strongly contested and its credibility depends on the court's view of the witness."

7. As mentioned, the Plaintiffs did not make such an application. Instead, after leave to set down has been granted, they issued a hearsay notice in respect of the Affirmation.

8. In High Fashion Garments v. Ng Siu Tong HCA 12093 of 1999, 5 May 2003, I held that a party cannot rely on Section 47 of the Evidence Ordinance and the new rules as to admission of hearsay evidence to escape from the obligation of producing a deponent of an affirmation for cross-examination. Despite Mr Lo's submissions, I am not persuaded that I should depart from my previous decision. I do not read Rover International v. Cannon Films Sales [1987] 1 WLR 1597 as authority to the contrary. In this connection, my view was supported by Rattee J in Re Dominion International Group Plc [1995] 1 WLR 649 at p. 654G to 655E. Mr Lo failed to advance any argument to suggest that my reasoning in High Fashion Garments, in particular Paragraphs 15 and 16 thereof, was incorrect. Nor did he deal with Sections 47(3) and (4) and 55B(1) of the Evidence Ordinance.

9. I therefore consider that the Plaintiffs could not escape from the principles applicable under Order 38 Rule 2 by resorting to Section 47 of the Evidence Ordinance. In substance, the evidence of Tung contained in the Affirmation was brought into existence by the Plaintiffs solely for the purpose of this action. Given the brevity of the Affirmation, there were a lot of questions that could be raised about Tung's evidence. By way of example, how did Tung learn that the person she saw at the site inspection was the 3rd Defendant? To what extent did the Plaintiffs contributed to the contents of the Affirmation? (I note that in a letter dated 3 June 2003 from the Plaintiffs' solicitors, it was said that the Plaintiffs obtained Tung's evidence and subsequently gave it to their solicitors). These are very pertinent and legitimate questions which the Defendants would be entitled to ask if they were given the opportunity to cross-examine Tung. As I said, Tung's evidence is highly controversial and it is very difficult to assess her credibility without any cross-examination.

10. After taking into account of the matters urged upon me by Mr Lo, including the lack of personal interest of Tung in the subject matter of the litigation, the existence of the other evidence on the same factual dispute, I do not consider it is appropriate to allow the Affirmation to be read as evidence at the trial without Tung being made available for cross-examination. Bearing in mind that Tung has returned to Malaysia, I am prepared to consider hearing her cross-examination through video-link and since it is the Plaintiffs' wish to adduce her evidence at the trial, they should procure her attendance at a suitable venue in Malaysia for cross-examination through video-link. If the Plaintiffs could not comply with that condition, the Affirmation will not be received as evidence at the trial.

11. Even if I were wrong on the effects of Order 38 Rule 2 and Section 47, the same result could be reached. As I have also decided in High Fashion Garments, although the new hearsay evidence regime has further liberalized the rules as to admission of hearsay material, it also provides proper safeguards under Section 48. One of the safeguards is to empower the court to give directions to secure the attendance of a witness for cross-examination under Order 38 Rule 21(2). I do not agree with Mr Lo in his submission that the court's power is so circumscribed that it could not order a party adducing the hearsay statement to procure the attendance of a witness. Although Section 48 refers to the calling of a witness by the party who wishes to cross-examine him, Section 55A of the Ordinance is in my view wide enough to authorize Rule 21(2) to be made. I see no reasons why directions to secure the attendance of a witness could not be made, having regard to the circumstances of a case, to impose such a burden on the party adducing the hearsay evidence. Whether such a direction should be made is of course a matter of discretion to be exercised by reference to the facts of each case.

12. Under Section 47 (1), the court may exclude hearsay evidence if it is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice. As I mentioned in the course of argument, although Section 49 of the Evidence Ordinance primarily deals with weight to be given to hearsay evidence, it does have an indirect bearing on the assessment as to whether the exclusion of a piece of hearsay evidence would be prejudicial to the interests of justice. If the court finds it possible to conclude that irrespective of what shall happen at the trial, no weight could be attach to a piece of evidence after taking into account of the matters set out under Section 49, its exclusion would not be prejudicial to the interests of justice.

13. On the facts of the present case, there is no evidence before me suggesting that the Plaintiffs have any difficulty in locating Tung. According to a letter dated 3 June 2003 from the Plaintiffs' solicitors to the solicitors for the 2nd and 3rd Defendants, the Plaintiffs did not make any enquiries in that regard. The Plaintiffs' solicitors apparently considered that in order to have Tung's evidence admitted at the trial, the Plaintiffs had complied with every aspect of the procedural requirements by disclosing the Affirmation in a supplemental list of documents.

14. In fact, but for the Listing Master's directions for the filing and service of hearsay notice, the Plaintiffs' solicitors did not think that they needed to do so as part of the preparation for the trial. Mr Lo submitted that there was no time limit for the service of hearsay notice under the new rules. That is not quite correct on the face of the legislation. Section 47A(2) imposes an obligation on a party proposing to adduce hearsay evidence to give notice as is reasonable and practicable in the circumstances for the purpose of enabling the other party to deal with any matters arising from its being hearsay. However, no specific rule (as contrast with the English position, see the Order 38 Rule 21 in England prior to the enactment of the CPR) has been made under Section 47A (1) and I leave open the issue as to its implications since it has not been argued before me. As a matter of common sense and good case preparation and management, hearsay notice should be given well in advance to forewarn the other party so that if necessary, application could be made by him under our Order 38 Rule 21 for such witness to be called for cross-examination. This should be done prior to the case is set down for trial. Otherwise, there will be a risk that the other party could be taken by surprise and trial may need to be adjourned to enable steps being taken to secure the attendance of the witness for cross-examination.

15. In the Checklist filed on 13 March 2003 for the purpose of hearing before the Listing Master, the Plaintiffs' solicitors indicated under item 7 that service of hearsay notices was not applicable. The solicitor also confirmed under item 21 that all steps that ought to be taken to prepare the action for trial have been duly taken and completed. If the Plaintiffs' solicitors' intention was to use the Affirmation at the trial through Section 47 of the Evidence Ordinance, these are, to say the least, inaccurate answers.

16. In my judgment, the inclusion of a document in a party's list of documents cannot be equated with the giving of notice to the other party that a litigant intends to use the same by way of hearsay evidence. As the rules stand, list of documents serves a different purpose. Hence, I do not think the Plaintiffs' solicitors can rely on the supplemental list of documents as giving notice to the defence that the Plaintiffs intended to use the Affirmation at the trial.

17. Coming back to the question as to what would be the appropriate order to make if the admissibility of the Affirmation is considered by reference to the hearsay evidence regime, following my analysis in Paragraphs 11 and 12 above, I am of the view that in the circumstances of the present case, it is appropriate to deal with the admissibility question at this stage and my conclusion is that unless the Plaintiffs secured the attendance of Tung for cross-examination at an appropriate venue in Malaysia for cross-examination by the defence, it would not be prejudicial to the interests of justice to exclude the Affirmation.

18. I do not think Section 47(2) prescribed that the court must leave the question of admissibility to the end of the trial. It only provides that the court may do so. Mr Lo referred to the judgment of Deputy Judge To in Aqua-Leisure Industries v. Aqua Splash Ltd (No.2) [2002] 1 HKLRD 241 at para. 30. On the facts of that case, the learned judge held that it would be appropriate to decide the question of admissibility at the conclusion of the trial. I do not think the learned judge decided that as a matter of law, this was the only option.

19. Coming back to our case, the only advantage of deciding the issue of admissibility at the end of the trial that Mr Lo could pinpoint was that the court would be in a better position to gauge the significance of the evidence contained in the Affirmation after all the evidence had been adduced. On analysis, that seems to me to be unreal. It is not suggested that further evidence as to how the Affirmation come into existence would come to light at the trial. The other evidence referred to by Mr Lo were other evidence on the same factual issue, viz. whether the 3rd Defendant was at the site visit. If those other evidence were credible, there is simply no need for the Plaintiffs to rely on the Affirmation. If those evidence were doubtful, they could not bolster the admissibility of the Affirmation. On the facts of the present application, given the provenance of the Affirmation and its brevity in contents, I do not see how the other evidence would assist in the determination of the question of admissibility. This is not a case where the admissibility of the Affirmation is contingent upon some views to be formed at the trial in respect of other evidence.

20. On the other hand, I could perceive a lot of difficulties in terms of case preparation if this issue is left to the conclusion of the trial. It is certainly undesirable that the parties should have to wait until the trial to see whether the Affirmation would be admitted as evidence and whether arrangement had to be made to secure the cross-examination of Tung.

21. As I said, the Affirmation was very brief and it basically just contained a bare assertion which the Plaintiffs found to be helpful to their case. Given its provenance, in the absence of cross-examination when it is possible to arrange for the same, the Affirmation is unlikely to be of any assistance to the court. I have tested the matter by going through the matters set out in Section 49(2) of the Evidence Ordinance. Hence, its exclusion would not be prejudicial to the interests of justice. For the reason given in Paragraph 12 above, I have not confused the question of weight with the question of admissibility in making reference to that sub-section.

22. Alternatively, I can treat the present application as an application by the Defendants under Order 38 Rule 21(2). If I were wrong in respect of the applicability of Order 38 Rule 2 and the exclusion of the Affirmation under Section 47(1)(b), I would exercise my discretion to direct the Plaintiffs to secure the attendance of Tung for cross-examination.

23. Therefore, the same result could be reached by different routes. I will make an order in term of the first Paragraph 1 in the summons of 23 May 2003 taken out by the 1st Defendant with a rider that it would be acceptable if cross-examination were to be conducted through video-link. Parties should seek directions from the court if they wish to make use of the facility of the Technology Court for such purpose.

Costs

24. I accept the submissions of counsel for the defendants that it is obvious that the original admissions were clerical mistakes and that seems also to be the position taken by the Plaintiffs' solicitor on 19 March 2003. However, the Listing Master did not consider it appropriate to deal with the matter at the checklist hearing. One would imagine that given the stance of the parties, the matter could be dealt with by way of a Consent Summons. Although normally the court will expect credible explanation from a party applying for withdrawal of an admission, I accept the submission of Mr Man, counsel for the 2nd and 3rd Defendants that in a case of obvious mistake, the court may grant leave even without an affidavit, see Taisei Kogyo Kaisha v. Billiongold Co Ltd [1992] 2 HKC 153. In a case like the present one, I see no reason why the parties could not put in a Consent Summons. If the court shall feel that it is case which requires some explanation, whether by way of affidavit or otherwise, this would be raised by the court before it makes any order on the Consent Summons.

25. The subsequent conducts on the part of the Plaintiffs' solicitors after 19 March 2003 strike me as a change of stance. I do not find it necessary to recite the correspondence between the solicitors in details. Suffice to say that such correspondence only served to increase the costs of litigation and I regret to say that the attitude adopted by the Plaintiffs' solicitors contributed a large part to such escalation in costs. Once it is appreciated and accepted (as the Plaintiffs' solicitor did on 19 March 2003) that the original admissions were clerical mistake, it is in the interest of all the parties to have the same disposed of as economically as possible.

26. I do not accept Mr Lo's submission that the Plaintiffs' solicitors were justified in changing their stance since the matter could not be dealt with at the hearing of 19 March 2003. The Plaintiffs' solicitor had been told that the original admissions were made by mistake and as I said this should have been pretty obvious. He felt he was able to accept this explanation on 19 March 2003 and presumably he had satisfied himself as to that before he advised his clients not to oppose the application on 19 March 2003. I fail to see why a different attitude should be adopted after he learnt that the Master required a formal application to be made. In the end, it is not a question of what were agreed on 19 March 2003 and what were not. The crucial question is whether the Plaintiffs had valid grounds to query what they had previously accepted, viz. that those admissions were made by mistake. Mr Lo has not been able to persuade me that there was valid ground to warrant such change of stance. As it turned out, the Plaintiffs felt unable to oppose the applications after lengthy correspondence and substantial costs incurred by way of affirmations filed in respect of this matter.

27. Mr Lo submitted that the Plaintiffs were concerned with the progress of the case and the delay caused by the withdrawal of admission. If the matter had been dealt with by way of Consent Summons, it would be much more expeditious. Solicitors have a duty advise their clients that time and costs should be not spent on unnecessary satellite proceedings. In this connection, I whole-heartedly endorsed what the Registrar said in a recent letter to the professions,

"I wish to emphasize that parties should act reasonably and sensibly. Practitioners should try to co-operate with each other. Adversarial system does not mean every step should be challenged and contested for no good reason. The Court is determined to sanction by way of costs orders against any party who acts unreasonably."

28. Although it is the Defendants' applications for withdrawal of admissions, I find that the Plaintiffs had through their solicitors acted unreasonably in respect of the matter and by reason thereof caused substantial escalation in costs arising out of the matter. Whilst the Plaintiffs should have the costs of the perusal of the summons and costs thrown away due to the replacement of the admissions, my view is that the Plaintiffs should pay the other costs incurred by the Defendants in respect of the applications for withdrawal of admissions. I shall order accordingly.

29. The Plaintiffs should also pay the Defendants' costs in respect of the applications relating to the Affirmation.

30. It is implicit in those costs orders that the Plaintiffs should pay the costs of the hearing of 15 September 2003. The same applies to the costs of the two summonses of 16 July 2003 (see Paragraph 6 of order of Chu J dated 18 July 2003). All costs orders made in this Decision shall be costs payable in any event.

31. In accordance with Practice Direction 25.1, parties may submit representations as to the publication of this Decision within 7 days.