CHEUNG DAVID YOKE MING v. CHEUNG YAT KEE AND ANOTHER

HCA 391/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 391 OF 2011

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BETWEEN

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D E C I S I O N

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1.  This is yet another late application for filing of supplemental witness statement and amendment of pleading.

2.  The trial of this case is fixed on 4 March 2013 with 6 days reserved. 

3.  In the PTR hearing before myself on 5 December 2012, the defendants’ counsel indicated to the court that the defendants intended to file further supplemental witness statement in reply to the allegations made in the plaintiff’s witness statement.  However, the court refused to give blanket leave to the defendants to do so without looking at the draft, and so the defendants took out the summons dated 18 January 2013 for the filing of the supplemental witness statement of CheungYoke Teng, Anna (“Anna”).

4.  After looking at the draft supplemental witness statement of Anna, I am satisfied that the contents of such supplemental witness statement are strictly in reply to the allegations made by the plaintiff in the witness statement in respect of what happened when Anna worked in England in a bowling alley.  That particular incident is not directly relevant to the main issue of the case, but it provides some background material for the court to decide whether the plaintiff had been taking care of and maintaining Anna while she was in England.  Since the plaintiff has made the allegations relating to such incident in his witness statement, it is only fair to allow Anna to reply to such allegations at the trial of this action.

5.  The plaintiff opposes the application on the ground that there was inordinate and unexplained delay on the part of the defendant in making this application.  I agree that the application could have been made earlier.  However, I would still exercise the discretion to allow the late application of the filing of the supplemental witness statement of Anna. Firstly, a fair opportunity should be given to Anna to respond to the plaintiff’s allegations at the trial.  Secondly, there is very little risk of disruption of the trial date.  As I see it, it is quite easy for the plaintiff to file a supplemental witness statement to deal with the late allegations, and it is quite unnecessary for the plaintiff to carry out any extensive investigation about the allegations contained in the supplemental witness statement of Anna. Ultimately, it is a matter for the court to decide whether to accept the evidence of the plaintiff or Anna on such issue, and so the calling of further witnesses on the issue is quite unnecessary. 

6.  In the case of 成都中泰交通建設發展有限公司 v NEO China Land Group (Holdings) Ltd, HCA 2196 of 2009, unreported (decision on 28 November 2012), I exercised the discretion to allow the late application of filing of supplemental witness statements based on similar reasoning.  Hence, I would exercise the discretion to allow the late application of the filing of the supplemental witness statement of Anna.

7.  I then turn to the amendment application.  It is clear that the main dispute between the parties is who has the beneficial interest in the Ting House which is the subject matter of the claim.  In para 12(6) of the original Defence, the defendants have expressively pleaded that the plaintiff is not the beneficial owner of the Ting House.  It therefore goes without saying that, according to the defence case, the defendants are the beneficial owners of the Ting House, and so the addition of the counterclaim is only a natural extension of the defence already pleaded in the existing pleading.  Hence, the counterclaim adds nothing new to the issues involved in the case.

8.  In his submission, Mr Ho, solicitor for the plaintiff, submits that the plaintiff can raise the defence of constructive trust or estoppel in response to the proposed counterclaim.  However, if the plaintiff intends to rely on such defence to answer the defendants’ allegation about the beneficial interest of the Ting House, why had the plaintiff not raised such allegation or defence earlier by way of amendment to the Statement of Claim or in the Reply?  As I see it, addition of the counterclaim adds nothing new to the case and there is no danger of any disruption of trial date.  Hence, I would exercise the discretion also in favour of the defendants in allowing the late application for the amendment of the pleading.