LAM YIM KAM JOHNSON v. LAM YIM HING DAVID

HCA 642/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 642 OF 2001

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R U L I N G

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1. This is an application by the Defendant to use two new affidavits which were not placed before the Master.

2. For the purpose of this appeal, the main difference on the material set out in the new evidence is a new presentation of the account. On the evidence before the Master, the only account rendered by the Defendant pursuant to the Consent Order was the account set out at p.195 - 197 of the bundle.

3. By the two new affidavits, the Defendant seeks to place before the Court account prepared by an accountant. Comparing the two sets of account, the main difference, as I see at this stage is the addition of two items with regard to transfer of two sums on account of rental deposit in between 3 January 2001 and 31 October 2001.

4. There is a transfer in between 1 January and 11 April 2001 in the sum of HK$179,000.00. There is another transfer between 12 April and 31 October 2001 in sum of HK$16,000.00. These were said to be transfers to cover the rental deposit. These transfers were not reflected in the original set of account placed before the Master. It was based on the original set of account that the Plaintiff took out the present application resulting in the order of the Master made on 7 May 2002.

5. On 7 May 2002, the Master ordered Defendant to pay the Plaintiff the sum of HK$130,800.34 based on the original set of account submitted by the Defendant. That order as to payment may be different if it was brought to the Master's attention that there should be deduction with regard to this rental deposit.

6. As I said, these transfers were not reflected in the original set of account submitted by the Defendant and neither was the point taken on his behalf at the time when the matter was argued before the Master.

7. I can understand that the Defendant, being a lay person, prepared his account in the manner as he did at p.195 - 197. He was legally however represented at the time of the hearing before the Master. It was unfortunate that this point was not brought to the attention of the Master at the hearing before the Master.

8. That was in fact a reference to that rental deposit HK$195,000.00 at p.197. But it was not clear from the presentation of the account set out at p.195 - 197 that this sum had to be deducted from the income commencing from 11 April 2001.

9. Although this is an appeal, as Mr Chan reminded me this is by way of rehearing. If there were actually transfers on account of rental deposit, there could be injustice to the Defendant if he is ordered to pay the sum of HK$130,000 odd without taking those into account.

10. On the other hand, Mr Chua reiterated the principle set out by Ma J Wong Hon Yu v. Wu Ming Fat [2002] 1 HRLRD 555 as to the admission of further evidence in an appeal against Master's decision. I need not recite what has been clearly set out by Ma J, in particular what he said in paragraphs 13 and 14 of his judgment. This is a matter of the exercise of my discretion.

11. The defence now taken by the Defendant, as I said, had not been taken before the Master. In a way it can be said that the Defendant took this point quite late in the day. However, taking all matters into account, I do not think it is right for me to deny him this opportunity to put his case before the court provided that the Plaintiff can be adequately compensated in terms of costs.

12. I ask myself whether the Plaintiff would suffer any prejudice as a result of the admission of the evidence. As I said, the summons of 11 January 2002 was issued on the basis of the original set of account. Perhaps having now the opportunity to look at the matter in the light of the new set of account and to conduct further investigation as to the genuineness as to the alleged transfers on account of the rent deposit, the Plaintiff may like to reconsider whether they would pursue this application with regard to the payment of the HK$130,000 odd or whether that should be the amount they ask for.

13. Be that as it may, I am not satisfied that there would be prejudice to the Plaintiff that can not be compensated by costs. At the end of day if the Plaintiff decides not to pursue the application or to vary the application in the light of the evidence as a result of this new set of account, then certainly that would be taken into account in deciding what is the appropriate cost order for the application.

14. Hence, although with some reluctance, I grant leave to the Defendant to use the new evidence filed on 28 May 2002. His evidence was filed late and the Plaintiff must be given opportunity to respond to the same and if necessary to seek discovery as to documents pertaining to the transfers of the rental deposit. Only after these were done can the Plaintiff be expected to decide what course to take regarding the appeal.

15. Therefore an adjournment is inevitable and I would adjourn this appeal to a date to be fixed and I would also hear parties on costs. Subject to what counsel have to say, what I have in mind is a gross sum order for today's hearing for costs thrown away as the result of the adjournment to be paid by the Defendant forthwith.