CHAN WAI TAK v. CHAN MAU PING AND OTHERS

HCA2321/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2321 OF 2009

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BETWEEN

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D E C I S I O N

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1.  By their Summons dated 22 August 2011, one day before the first day of trial, the 1^st, 2^nd and 6^th defendants (“the defendants”) sought leave to file a Witness Statement of Chan Wai Fan (“Dr Chan”). The application was not supported by any affidavit explaining why the application was being made so late. When this was pointed out to Mr James Tze, counsel for the defendants, he asked for the hearing of the summons to be adjourned to today for the defendants to be given an opportunity to file such an affidavit. I accordingly directed that the hearing of the summons be adjourned to today and that the defendants should file and serve their supporting affidavit by 2 p.m. yesterday. The 7^th Affirmation of Chan Mau Ping Tandy (“the 1^st Defendant’s 7^th Affirmation”) was duly filed in support of the defendants’ application.

2.  Given that one and a half days of the time allotted for the trial of this action has already been taken up by this present application, the defendant’s unsuccessful application to strike out parts of the Supplemental Witness Statement of the plaintiff as well as other matters arising out of the defendants’ very late disclosure of a large number of documents which they wish to rely upon at the trial of this action, I propose to give only very brief reasons for my ruling.

3.  As held by the Honourable Mr Justice Lam in Guangzhou Green-Enhan Bio-Engineering Co. Ltd & Anor v. Green Power Health Products International Co. Ltd & Ors, HCA4651 of 2002, 2802 of 2003 and HCMP74 of 2004, unreported, 21 August 2004, in dealing with late applications such as the present, the court is required to conduct a balancing exercise.

4.  In the 1^st Defendant’s 7^th Affirmation, the explanation which he provided for the lateness of the present application is that it was not until early July 2011 that he mentioned to Dr Chan that this action would be tried in August 2011.  It was only then that Dr Chan asked if he could help and this eventually led to a draft witness statement being prepared.  This was sent to Dr Chan on about 10 August 2011 and Dr Chan indicated that he had to consider the contents of the draft and whether he could attend court to testify.  The 1^st defendant explains that it was not until 22 August that Dr Chan agreed to sign the witness statement and to testify.

5.  Whilst Mr Lee Tung Ming, who appears for the plaintiff, has made certain criticisms, probably valid, of the explanation provided by the 1^st defendant, it appears to me that what is more important in the balancing exercise in the present case is the relevance of the testimony to be provided by Dr Chan and whether the plaintiff would suffer serious prejudice if leave is granted for such evidence to be adduced.

6.  The arguments of the parties were originally centred on three paragraphs of the original draft of the witness statement, paragraphs 3, 4 and 5.  However, in his reply submissions, Mr Tze conceded that the defendants no longer sought to rely on paragraph 5 and that this paragraph would be deleted from the witness statement if leave was otherwise given to the defendants to file it.

7.  In paragraph 3 of his witness statement, Dr Chan states that at or about the end of 2006, he had a gathering with the plaintiff and the 1^st defendant during which he came to know that the 1^st defendant had found some PRC investor to establish a PRC company (the 7^th defendant) to cooperate with the plaintiff’s Hong Kong company.  I accept Mr Tze’s submission that this evidence is relevant to the core issue in this action.  Mr Lee submits, however, that what is set out in paragraph 3 is unsatisfactory because Dr Chan has only said that “he came to know” the matters set out in paragraph 3 without identifying who it was who had told him such matters.  Mr Lee also submitted that the 1^st defendant had not said anything about this gathering in any of his witness statements.  However, Mr Lee was unable to point to any prejudice which would be suffered by the plaintiff if Dr Chan is allowed to testify to the matters set out in paragraph 3.  Indeed, as submitted by Mr Tze, the points which Mr Lee made can be explored in cross-examination of Dr Chan.

8.  In paragraph 4 of the witness statement, Dr Chan states that in about May 2009, the 1^st defendant discussed with him a matter concerning the pocketing of money by the plaintiff from the 7^th defendant and asked him for suggestions as to how to handle the matter.  He then said that he recommended that the 1^st defendant should post more harsh management measures to protect the PRC investor’s interest.  Dr Chan also stated that he recommended that the 1^st defendant and the investors should cease cooperation with the plaintiff if such measures should fail.  Mr Lee submits that Dr Chan’s testimony in this paragraph relates only to a collateral matter.  I do not agree. Substantial parts of the witness statements of the plaintiff and of the 1^st defendant deal with the measures which were put in place at the 7^th defendant from about May or June 2009, the plaintiff and the 1^st defendant putting forward different explanations as to why such measures were put in place.  Dr Chan’s testimony in paragraph 4 is accordingly relevant to this dispute between the parties.  Mr Lee also submits that what Dr Chan says in paragraph 4 is of no probative value as it is all premised on what the 1^st defendant had told him.  I am again not able to agree with Mr Lee’s submission.  If what Dr Chan says is accepted to be true, this may shed some light on the veracity of the 1^st defendant’s explanations.  Mr Lee is also not able to point to any prejudice which would be suffered by the plaintiff if Dr Chan is allowed to testify to the matters set out in paragraph 4.

9.  As the evidence contained in the two disputed paragraphs are indeed relevant to the issues in this action and as Mr Lee is not able to point to any prejudice, let alone serious prejudice, which will be suffered by the plaintiff if the defendants are given leave to file and rely on the Witness Statement of Dr Chan, I grant leave to the  defendants to file the Witness Statement of Chan Wai Fan as per the draft annexed to the defendants Summons dated 22 August 2011, as amended by the deletion of paragraph 5.