BIG ISLAND CONSTRUCTION (HK) LTD v. WU YI DEVELOPMENT CO LTD AND ANOTHER

HCA1957/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1957 OF 2005

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REASONS FOR DECISION

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Introduction

1. On 26 January 2010, I made an order refusing the Wu Yi Parties’ application for leave to subpoena Mr Chua Kim Kai, certified public accountant of Chen Yih Kuen & Co. to give evidence or alternatively setting aside the subpoena if it was treated as having been issued.  In order not to hold up the trial proper, I indicated that I would hand down the reasons in writing later, which I now do. 

Proper practice

2. Generally speaking, a party is entitled to call the oral evidence of witnesses who will assist him in presenting his case as a general right : see Li Man York Evelyn v Li Wat Tat Walton [1997] 3 HKC 532.  However, he must act with due diligence in approaching his witnesses well in advance before the trial begins.  Based on the witnesses’ response, the following practice should be adopted. 

3. If the witness is willing to assist, the party intending to call him should properly prepare his witness statement and exchange it with the other side in accordance with the court’s directions.  If he fails to do so, he may not be allowed to call the witness : see Order 38 rule 2A(10) of the Rules of the High Court. 

4. If the witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the case management conference.  And he should apply to issue the subpoena once the trial dates are known.  Upon the issue of the subpoena, he should inform the other side forthwith.  The other side should then decide if he wishes to apply to set aside the subpoena on grounds such as that the witness’s evidence is irrelevant or that the trial will be unduly expanded beyond the issues raised in the pleadings and matters necessarily ancillary thereto : see Phipson on Evidence (16^th edn), paragraphs 8-05, 8-08 and 8-20.  Any setting aside application should be taken out as soon as practicable.  All the applications pertaining to the subpoena should be disposed of before the pre-trial review. 

5. The above practice for subpoenaing a witness is to facilitate the more efficient, expeditious and fair management and disposal of cases and to ensure that the trial proper will not be impeded. 

6. After the CJR, as well as before it, the parties are expected to carefully and thoroughly think through all the preparatory steps leading up to the trial, including the decision whether to subpoena an unwilling witness.  All interlocutory applications, including the one pertaining to a subpoena, should be disposed of before the pre-trial review.  A late application may be dismissed on the basis of delay alone : see paragraph 34 of the Practice Direction 5.2 on Case Management.  Dismissing a late application for delay alone applies with even greater force when it is taken out in the course of the trial.  The applicant must justify the late application with good, strong reasons. 

Application refused

7. In my view, the Wu Yi Parties’ application to subpoena Mr Chua came far too late.  In fact, the need to subpoena Mr Chua was not once alluded to in any of the interlocutory hearings or the pre-trial reviews since I took over the case management in 2009.  The inordinate delay is wholly unjustified and inexcusable. 

8. Mr Ho, SC, for the Wu Yi Parties, submitted that subpoenaing Mr Chua, an essential witness, was a difficult decision to make.  But it hardly amounts to an excuse for the delay at all. 

9. I was not told when Mr Chua was approached.  Since he is on the Wu Yi Parties’ case an essential witness, I assume that he must have been approached soon after the proceedings had been commenced.  If that was the case, then the Wu Yi Parties ought to have known that he was unwilling to testify unless subpoenaed well before the trial began.  By not applying for a subpoena there and then, the Wu Yi Parties must have made a conscious decision not to call him.  The Wu Yi Parties have failed completely to explain why it is necessary to call him now. 

10. If the Wu Yi Parties only approached Mr Chua recently, the dilatoriness is inexcusable. 

11. On the ground of inordinate and inexcusable delay alone, the application must be refused. 

12. In any event, I agree with the submissions of Mr Fung, SC, for the Big Island Parties, that it is impermissible to call Mr Chua when it appears that the predominant reason for calling him is to impeach the credibility of the two witnesses called by them : see Phipson, supra, paragraphs 8-21. 

Conclusion

13. For the above reasons, I made the order as I did.