THE HONGKONG AND SHANGHAI BANKING CORPORATION v. NG CHEUNG MING

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JUDGMENT

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Kaplan, J.

1. This is an appeal from a decision of Barnett, J. given on 11th December 1990, whereby he allowed an appeal from the Master who had granted the relief. sought by the Plaintiffs in their summons dated 1st October 1990.

2. The summons sought leave to read at trial 3 affidavits of Betty Wu, dated respectively 16th March 1987, 12th May 1987 and 14th May 1987. Unfortunately, this lady died on the 2nd December 1987.

3. At all material time, this lady was a Deputy Managing Director of the China Trade Department of the Plaintiffs, and her affirmation of the 16th March 1987 is in response to the Defendant's affirmation dated the 18th February 1987, filed in opposition to the Plaintiffs' order 14 summons.

4. It is common ground that the only relevant affirmation is that dated the 16th March 1987, and the appeal is limited thereto.

5. By this action , the Plaintiff's claim some $11 million against the Defendant, in respect of banking facilities granted by them to a partnership which included the Defendant and there is also a claim against the Defendant based on a guarantee of the liabilities of the partnership.

6. The simple issue in the case is whether the Defendant's liability was varied upon acceptance by the Plaintiffs of a proportional repayment agreement. Much of the affidavit turns on a meeting which this lady attended on the 27th June 1985. The application was made under Order 38 rule 2 which provides that the court may at or before the trial of an action begun by writ order that the affidavit of any witness may be read at. the-trial if in the circumstances of the case it thinks it reasonable so to order.

7. It is common ground that the learned judge considered this rule and correctly stated that if the affidavit was read its weight would be a matter for the trial judge. He then asked himself whether it was reasonable for this affidavit to be read, and having heard submissions by both parties and had some law quoted to him, he answered that question in the negative, hence this appeal. It is common ground that this court will not substitute its own views for those of the judge. It will only interfere if the judge's exercise of discretion is in some way flawed.

8. Mr. Stone, in his helpful skeleton, recognizes in the last paragraph that this is the major hurdle facing the Appellant who seeks to overturn a decision arrived at in the exercise of a judicial discretion. Having considered Mr. Stone's arguments, it appears to me that this hurdle has not been surmounted. The learned judge took into account a number of matters when he decided not to exercise the very wide discretion which he has under Order 38 rule 2 sub-rule 1. He was entitled to take into account, as he did, that there was another witness present at the important meeting of the 27th June, who is fortunately still alive and who purported to record the contents of that meeting. In Betty Wu's affirmation, which is sought to be introduced at trial, she confirms the accuracy of that note.

9. The learned judge was also addressed, so were told by Mr. Maxwell Lewis, who appeared in the court below, about the use that this affidavit might be put to in relation to earlier meetings, and the learned judge found, as indeed is correct from the affidavit, that the affidavit does not refer to this and he felt that this would only serve to confuse and not to clarify the issues.

10. It seems that the learned judge considered all the matters that were placed before him, and having considered them exercised his discretion against the Plaintiffs. We have been referred, of course, to the passage at p.220 in Lord Diplock's speech in Hadmor Productions v. Hamilton (1983) 1A.C.191 and it is clear from that passage that it matters not whether the members of this court would have come to the same decision as the judge provided his exercise of discretion was not flawed.

11. The simple answer to the appeal is that it was the judge's discretion, he exercised it, in our judgment, correctly and he did not take into acoount any irrelevant considerations. Therefore, I would dismiss this appeal.

Cons, V-P

12. I agree with my Lord and for the reasons that he has given, that the appeal should be dismissed. I was concerned at one stage with the judge's comments as to confusion which appear at the foot of page 69. of the appeal bundle, but having heard the explanation from Mr. Maxwell Lewis as to how these matters were put to the. judge below and the argument then advanced the judge's words are readily understandable.

Kempster, J.A.

13. I also would dismiss the appeal for the reasons given.