JIAN YU QIANG v. LI SHI LIANG AND OTHERS

HCA 459/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 459 OF 2003

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REASONS   FOR   DECISION

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1.  On 19 October 2004 I ordered that the Plaintiff himself provide an affidavit answering the Defendants' Interrogatories of 19 July 2004.

2.  By Affidavit dated 18 October 2004, the Plaintiff's solicitor had filed his own affirmation purporting to answer the Interrogatories.  But, the Interrogatories being addressed to the Plaintiff and being concerned with the Plaintiff's knowledge, it seemed to me appropriate to require the Plaintiff himself to provide an affirmation.

3.  It is unusual for a solicitor to swear answers to Interrogatories relating to a party's knowledge of pertinent events.  The solicitor's affidavit, being based on instructions, would only constitute hearsay evidence and could not be regarded as the best available evidence for trial purposes.

4.  I also ordered that the Plaintiff answer the Defendants' Request for Further and Better Particulars (the Request) of the Amended Reply and Defence to Counterclaim (AMREP).

5.  The Request seeks standard particulars of averments in AMREP (essentially, where, when, by whom and how certain payments were made).  The Defendants are entitled to know the details of the Plaintiff's positive case in connection with those payments.  I do not accept the Plaintiff's contention that the Defendants were not entitled to the particulars sought.

6.  Mr. Leung for the Plaintiff indicated at the hearing that the Plaintiff might wish to re-amend AMREP.  When I ruled against him on the Request, he asked for a stay pending an application to re-amend AMREP.

7.  I told Mr. Leung that the Court could only deal with the pleadings as they stood at the time of the hearing of the Request summons.

8.  But the Plaintiff would be allowed 21 days to answer the Request.  If (within those 21 days) the Plaintiff applied to re-amend AMREP either to delete the averments of which particulars were sought or to change its positive case in some way, the Court could consider the consequences of the summons to re-amend when it came for hearing. 

9.  A summons to re-amend may or may not render it otiose to provide the particulars of AMREP (as that pleading stood at the time of hearing before me).  That is a question that the Court can only go into, if and when it has sight of the sorts of re-amendments (if any) intended by the Plaintiff.  I made this clear to both solicitors before me.

10.  If a party X fails to provide particulars, the Court normally strikes out the averments for which particulars ought to have been provided.  If by a summons to re-amend, X of its own motion applies to strike-out the averments so as no longer to rely on the same, it would be odd for the Court to insist that X still provide superfluous particulars of the deleted averments.

11.  But I repeat that is a matter which the Court can only look into when proposed re-amendments are brought to its attention.  The Court cannot consider the question in a vacuum, in advance of any summons to re-amend.

12.  Finally, I made a gross sum assessment of $4,000 ($2,000 on each of the 2 summonses before me) in favour of the Defendants.  This was because in substance the Defendants had prevailed on both summonses.