MOK HING CHUNG v. WONG KWONG YIU

HCAP 8/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 8 OF 2010

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1. This is the first day of a seven‑day trial, the dates for which must have been fixed a long time ago. Yet I am faced with, and must rule on, an application made by summons dated 29 May 2014 to grant the plaintiff in HCA 8/2010 liberty to call an additional witness，being Wong Cheong Wing (the natural brother of the plaintiff).

2. The application is supported by the affirmation of the plaintiff dated 30 May 2014, to which is exhibited an informal witness statement of Wong Cheong Wing identifying the substance of the evidence it is proposed he be at liberty to give at this trial.  The informal statement has since been substituted (albeit in materially identical terms) by a formal witness statement signed by Wong Cheong Wing with a Statement of Truth and dated yesterday 4 June 2014.  I am told that Wong Cheong Wing is 80 years old and though ordinarily resident in Canada has flown to Hong Kong and is ready to give evidence at this trial.

3. On any view this is a very late attempt to add a witness for a trial, but the plaintiff says the evidence it is intended Wong Cheong Wing will give is to deal with — the word “rebut” has been used, probably technically incorrect — material contained in the 2^nd supplemental witness statement of the defendant in the action.  That statement was filed on 12 May 2014, and the plaintiff says it raised various matters related to Wong Cheong Wing or things said attributed to Wong Cheong Wing to which there can and should be some response from Wong Cheong Wing himself.

4. Against the timing of the application, it is no surprise that Ms Margaret Ng, for the defendant, strongly opposes it.  She points out that it comes so late that it was made even after the 3^rd pre‑trial review which took place on 24 April 2014 and so late that it can only be dealt with only on the first day of the trial.  She reminds me that in the post‑CJR world lateness or delay alone may be sufficient for an application to be dismissed.  She says there are no exceptional circumstances as should permit this late attempt to add to the witness list for a trial.  She also asserts that the defendant would be prejudiced if the late extra witness is allowed.

5. As to the circumstances and prejudice, Ms Ng in particular points to the fact that Wong Cheong Wing is the natural brother of the plaintiff (and I note there is no suggestion of any difficulty in contact between them) ; that there was a previous summons dated 18 March 2014 by which the plaintiff had sought an order that Wong Cheong Wing should be called and cross‑examined, but which application was withdrawn; that the trial would necessarily be “derailed”, that is adjourned, if the additional witness is allowed which would cause real prejudice when some of the witnesses — and in particular the defendant’s mother— are elderly; and that in any event the proposed evidence is not relevant to the real issues I have to decide — not least to the central question as to whether or not the defendant was adopted by Wong Yin Ling, the person whose estate is the subject matter of HCAP 10/2012 (in which action the parties’ roles as plaintiff and defendant are reversed).

6. The Rules of the High Court and the Practice Directions are there to be followed. As Ms Ng put it, they were made to be kept.  The rules are intended to permit the proper administration of justice.  But justice includes — as the underlying objectives in the rules also make express — the proper resolution of the disputes between the parties on their merits.

7. This seems to me to require me to consider whether, on balance, I think the ends of justice would likely better be served by permitting the additional witness even at this very late stage, or by disallowing it.  That overall question encompasses at least the consideration of whether the evidence might be helpful in reaching the correct and just resolution of the dispute, and if so whether it might force an adjournment with the obvious potential prejudice as might flow from that.

8. Ms Ng has taken me through the evolution of the witness statements to show that the material touching on Wong Cheong Wing came first from the plaintiff and was only being responded to by the defendant.  So, she says, the justification now put forward as to why the plaintiff is only now producing Wong Cheong Wing as a witness does not hold up.  She also says that in any event those parts of the evidential material are not really relevant. But I note that the exchange on this area has continued up to and including the defendant’s 2^nd supplemental witness statement dated 12 May 2014 and which was also after the 3^rd pre‑trial review on 24 April 2014.

9. How relevant Wong Cheong Wing’s proposed evidence might be will ultimately turn on my decision — which I cannot make now — as to which of Mr Hung’s (for the plaintiff) or Ms Ng’s legal approaches is correct.  But I think Wong Cheong Wing’s evidence is relevant, at least to the surrounding circumstances about which both sides have sought to make great play in the witness statements and other material filed for this action —and when a number of the surrounding participants are no longer available to assist the court because of the passage of years.  Rather than just hearing about Wong Cheong Wing, it seems preferable to me to hear from him.

10. Also, it seems to me that if I am ultimately persuaded by Ms Ng that on her legal approach, if correct, Wong Cheong Wing’s evidence is not relevant, then I do not see that it can cause the defendant prejudice which cannot be compensated in costs.  I am not at this stage minded to exclude potentially helpful material unless I see such prejudice as will point to the need to exclude it.

11. The content of Wong Cheong Wing’s witness statement is rather compact, and largely specifically comments on matters already canvassed by the defendant in his own witness statements.  Though perhaps at some inconvenience, I think the defendant should be able to give proper instructions to his legal team before Wong Cheong Wing gives evidence, likely some time next week.  That the defendant’s mother is in her 90s and that Wong Cheong Wing is 80 are facts which identify the parties should be working hard — overtime, if you like, if necessary — to deal with the issues in the time allotted to this trial.

12. I will of course allow the defendant some latitude in adding to his evidence‑in‑chief orally, and Ms Ng can rest assured that I do not intend to let a “tennis match” start where the parties’ requests to respond to the other never end.

13. I should make clear that this ruling is not a green light to the parties in this or any other action to think that rules are not intended to be followed, or that any breaches of the rules will be overlooked or forgiven.  However, in the particular circumstances of this case, and balancing the various matters to be weighed, I am exceptionally prepared to allow Wong Cheong Wing to be called as a witness, to give evidence in accordance with his witness statement, which will stand as his evidence‑in‑chief. I will reserve the question of costs to my ultimate costs ruling.