ERIC EDWARD HOTUNG AND ANOTHER v. HO YUEN KI AND OTHERS

HCA 857/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 857 OF 2011

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D E C I S I O N

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1.  I have before me 2 summonses, one taken out by the 1^st defendant and the other taken out by the 2^nd defendant, both on 18 May 2016 seeking leave to file and serve voluntary particulars in relation to the defence of laches. The voluntary particulars, including an additional paragraph 3 first raised this morning, which the 1^st and 2^nd defendants propose to put in are, I am told, identical.

2.  Paragraph 1 asserts that the 1^st plaintiff’s long inaction and delay in asserting his claim has resulted in the destruction or loss of evidence by which his claim might have been resisted.  This paragraph has to be read together with paragraph 2, which itemizes the evidence which it is said has been destroyed or lost.

3.  Sub-paragraphs (a) to (c) of paragraph 2 relate to (i) the date and manner of the alleged repayment of $1.6m by the 1^st defendant to the 1^st plaintiff, (ii) the banking records of that repayment, and (iii) the allegation that the 1^st plaintiff had forgiven the rest of the 1^st defendant’s indebtedness. These are not new matters on the existing pleadings and further and better particulars already served.  They are relevant to the plea of laches.  I do not see that the plaintiffs would be prejudiced by these matters now being formally set out by the 1^st and 2^nd defendants in support of the defence of laches.

4.  Sub-paragraphs (d) to (e) of paragraph 2 relate to potential witnesses (who have either passed away or can no longer be traced) and documents which it is said would support the 1^st defendant’s case and/or contradict the 1^st plaintiff’s allegations.  As I understand from counsel’s submissions, these witnesses and documents all relate to a previous litigation in 1965 brought by Mr Teddy Yip against, amongst others, the 1^st plaintiff and 1^st defendant in respect of the same subject matters of this action or matters connected therewith.  The 1^st plaintiff says that the fact that he was named as a defendant in the 1965 action is some indication that Mr Teddy Yip recognized that he had an interest in the relevant shares.

5.  Mr Chung for the plaintiffs accepts that the persons named in paragraph 2(d) have passed away between 1997 and 2006.  He has made no submission regarding the availability of the documents mentioned in paragraph 2(e), and he says that the plaintiffs have not had any opportunity to investigate the availability of the potential witnesses named in paragraph 2(f).

6.  It seems to me that the matters raised in paragraphs 2(d) to (e) are all relevant to the defence of laches.  Whether the potential witnesses or documents would actually assist the 1^st and 2^nd defendants in establishing the defence of laches is something which can be argued in due course, and obviously I would have to bear in mind the lateness of these particulars when assessing what, if any, weight ought to be given to them, particularly when the 1^st plaintiff and 1^st defendant have made witness statements and may give direct evidence at the trial on the true arrangement between them in relation to the HK$2m payment.  In fairness to the plaintiffs, I should indicate that I would permit the plaintiffs to put in further evidence regarding the availability of those persons named in paragraph 2(f) should they wish to do so.

7.  Paragraph 3 relates to the age of the 1^st defendant, which is not in dispute.  It is also said that “[s]ince the commencement of this action the health of the 1^st defendant had deteriorated especially since the last pretrial review in March 2016.  Her condition as on 23 May 2016 is such that it is very doubtful whether she would be in a condition fit to give evidence in the course of the trial.”  There is, however, no medical evidence regarding the 1^st defendant’s current health condition.  Neither is there any evidence that her health has deteriorated especially since the last pretrial review in March 2016 as alleged.  Such evidence ought to have been readily available.   I am not prepared to accept the bare statement made in paragraph 3 on those matters.

8.  In all, I would grant leave to the 1^st and 2^nd defendants to file and serve voluntary particulars in the form of the amended draft before me, save the last two sentences in paragraph 3.

9.  In passing, I should mention that although paragraph 2 of voluntary particulars is stated in the “inclusive” sense, having spelt out the evidence which it is said has been destroyed or lost in sub‑paragraphs (a) to (f), I would consider that list as being exhaustive, unless 1^st and 2^nd defendants apply to add to the list (which will have to be dealt with separately).