CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) AND OTHERS v. BANK OF CHINA (HONG KONG) LTD

HCA 1742/2018

[2026] HKCFI 3594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1742 OF 2018

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D E C I S I O N

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1.  This is the Defendant’s application for leave to file and serve the Second Supplemental Witness Statement of Yim Chi Keung dated 30 March 2026. The Defendant submits that the statement is to respond to specific matters arising from the joint expert report of Plaintiffs’ expert (Mr Jeremy Platts) and the Defendant’s expert (Mr Tim Hui) filed on 13 March 2026.

2.  The application is opposed by the Plaintiffs on two grounds. First, the Plaintiffs contend that the new statement is effectively “top up” expert evidence to respond to Mr Platts’ opinion, and is therefore impermissible. The Plaintiffs further say that the application is made too late.

3.  Having considered its contents, I agree with the Defendant that the new statement principally seeks to respond to Mr Platts’ expert evidence on what the Defendant’s anti-money laundering policies and requirements were or should have been. Mr Yim’s new statement identifies Mr Platts’ opinions which the Defendant seeks to address, explains why his opinions do not reflect the Defendant’s actual practice, policy or operations, and sets out what the Defendant’s actual practice, policy or operations were at the material times. In my view, the proposed evidence in the new statement is relevant and probative. And I do not think the contents of the new statement are mere repetitions of what Mr Yim said in his first witness statement.

4.  The Plaintiffs submit that it is not Mr Yim’s place to disagree with an expert. I think the position is more nuanced. To the extent that Mr Platts’ expert evidence involves making suggestions about what the Defendant was supposed to have done at the material times, I do not think it would be objectionable for the Defendant to advance factual evidence to counter such suggestions. Further, insofar as Mr Platts’ opinions suggest that the Defendant ought to have adopted certain practice, I believe the Defendant should be allowed to put forward factual evidence to explain why it was not possible or feasible to have done so. It seems to me that this is indeed what Mr Yim is seeking to do in most parts of his new statement.

5.  Nonetheless, I have some misgivings about paragraphs 21 and 22 of the new statement. In those paragraphs, Mr Yim refers to Mr Platts’ opinions and seeks to argue that his views are effectively wrong. Mr Yim contends that the document relied upon by the expert “does not support Mr Platts’ suggestion” and that certain manual of the Defendant “should not be read out of context”. I agree with the Plaintiffs that these two paragraphs are Mr Yim’s arguments and should not be included in a witness statement from a factual witness.

6.  As far as delay is concerned, the Plaintiffs are correct to point out that the application is made very late in the sense that it was made more than 6 months after the initial deadline for the parties to exchange witness statements, and just four months before the commencement of the trial. Nonetheless, it needs to be recognised that the new statement seeks to respond to the views of Mr Platts, which were only formally set out in the joint report dated 13 March 2026. Further, the Defendant provided the signed new statement to the Plaintiffs on 31 March 2026. The reason why the Defendant’s summons was only issued on 8 May 2026 was explained in Mr Fan’s 5^th affidavit. She stated that the Defendant’s solicitors were liaising with another potential witness with a view to obtaining his consent to act as a witness in April 2026, but that attempt failed. In these circumstances, I consider there are reasonable mitigating circumstances to justify the delay.

7.  Apart from the considerations already mentioned, I have also taken into account the fact that Mr Yim is an existing witness and that giving the Defendant leave to file and serve the new statement is not likely to cause any disruption to the trial. Further, the Plaintiffs have not suggested that they will be prejudiced by the filing of the new statement from Mr Yim.

8.  In these circumstances, subject to the deletion of paragraphs 21 and 22, I exercise my discretion to grant leave to the Defendant to file and serve the Second Witness Supplemental of Yim Chi Keung within 7 days from today’s date, notwithstanding my earlier Order dated 25 June 2025.

9.  I will now hear the parties on costs.

[Submissions on costs]

10.  Although the application has been unsuccessfully opposed by the Plaintiff, I do not think the opposition was entirely unreasonable. Moreover, the Defendant is seeking the indulgence of the court to seek leave to file this new statement out of time. In these circumstances, it seems to me a fair costs order is that the costs of and occasioned by the Defendant’s summons dated 8 May 2026 be in the cause. I so order.