CHAN WAI SHAN v. OCEAN PARK CORPORATION

HCPI 644/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PERSONAL INJURIES ACTION NO. 644 OF 2006

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BETWEEN

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D E C I S I O N

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1.  The following is my decision in the application before me this morning.

The application

2.  The history of the preliminary point raised by the defendant is basically an objection against a consultant of the plaintiff’s firm of solicitors to act for the plaintiff. The defendant through its solicitor and now its counsel submitted to this court that the solicitor Mr Shu, as a consultant of the firm of Messrs Poon Shum & Cheng should not continue to act for his wife, being the plaintiff herself.

3.  However, as admittedly by the defence, there is no rule or code of conduct that a solicitor cannot act for his or her spouse. This code of conduct for solicitors, as far as I understand, is different from the code of conduct for barristers. A counsel is not allowed to act for his close relatives, say his spouse, children, his parents, brothers and sisters because it would affect his independency. The reason why we have a divided profession is because the Bar has been considered as an independent body which is not instructed directly by its lay client but solicitors instead. The rule would keep the independence of the Bar which is quite important. For example, when solicitors instruct counsel to consider whether certain documents should be disclosed to the other side, that counsel is allowed to give his opinion. If according to the law, those documents should be disclosed to the other side, then counsel is bound to insist on disclosure, even though this may be against the interest of his client.

4.  Further the defendant also made complaint to the Director of Legal Aid for granting legal aid to the plaintiff but to no avail. I will not say anything more in this respect.

5.  There were further complaints about this solicitor or this firm of solicitors that the plaintiff’s solicitors have incurred unnecessary costs, for example, in terms of a number of statements of the plaintiff and a bill of costs of the plaintiff in respect of an interlocutory matter. They complained that the bill shows that that solicitor Mr Shu is one of the fee earners in the matter. But if he could act for his wife, he could be a fee earner. This is in fact exactly the same complaint that he should not act for his wife which is not prohibited by the Law Society’s code of conduct.

6.  If the complaint is that some items of costs were unnecessary or exorbitant, then that is only a matter of taxation and that is not a reason to disable that solicitor from acting for his wife.

7.  In fact the Allocatur (Bill No. 1) dated 13 July 2009 of that bill shows that the party and party costs were already taxed down by Deputy Registrar B Kwan from $280,367 to $255,395. To my mind there is nothing unusual in that taxation.

8.  Mr Hingorani for the plaintiff in his submissions pointed out that the defendant’s solicitors had been attacking the plaintiff “from the back door” so to speak. They had been saying that the plaintiff should not be represented by her husband as her solicitor and the firm in which he is a consultant and a fee earner in this case should also cease to act for the plaintiff. That complaint to Master Kwan was referred by the learned Master to me as the trial judge.

9.  In the first PTR hearing before the PI judge Fung J on 20 October 2008, solicitor appearing for the defence also raised this point in paragraph 15 of her written submission that Mr Shu is the husband of the plaintiff and said that :

“There may be conflict of interest and doubts if the plaintiff’s solicitors can discharge his duty to give independent legal advice to the plaintiff.”

10.  I was told by Mr Hingorani, counsel appearing for the plaintiff, who also appeared in that hearing that there was no application for an order or direction that Mr Shu and his firm of solicitors could not act for the plaintiff. To put it crudely, his answer to that submission of the defendant’s solicitor was : “It is none of your business whether Mr Shu or his firm could give any independent advice to his or their client.” I was told by Mr Hingorani that Fung J, not surprisingly, did not make any ruling or even comment thereon as there was no application to him requiring him to make a decision.

The video tape

11.  Today, the first day of trial of this action, Ms Corinne Remedios, counsel for the defendant, is making a formal application from the bar table to the effect that Mr Shu and his firm of solicitors should immediately cease to act for the plaintiff. This application came in a slightly convoluted way. What happened was this : There was a videotape taken or filmed on a VHS Camcorder by Mr Shu himself on 30 August 2003, i.e. shortly after this accident which happened on 4 August 2003, I mean this alleged accident because whether there is an accident is an issue to be tried. This tape was discovered by the plaintiff much earlier.

12.  On 19 December 2006 Master Kwan made the order that :

“6.  If possible, the parties shall agree within 56 days on the adducing of the videotape of the Flying Fox taken by the plaintiff’s solicitors.”

The Flying Fox is the game in which the plaintiff participated and allegedly was injured as a result thereof.

13.  On 13 February 2007, i.e. shortly before the expiration of the aforesaid 56 days, solicitors for the defendant wrote and said :

“In relation to the video recording, we are instructed that our client agreed that the videotape of Flying Fox shows the operation of the Flying Fox.”

14.  In the submission from Mr Hingorani he said that that amounted to an agreement on the admissibility of the videotape without calling the maker or the plaintiff could adduce the same without calling the makers and therefore the defendant is estopped from reneging from that position.

15.  Be that as it may, in any event, nothing was raised in respect of this tape until shortly before this trial. That was 19 August 2009, i.e. just 12 days before today. Solicitors for the plaintiff wrote to the defendant on that day to give notice that they will require Professor Sze Kam Yim and Dr Daniel Yip, witnesses for the defence, to give oral evidence at the trial so that they could be cross-examined by the plaintiff side. Here there is no dispute that the defence shall be calling them, I was told, to give viva voce evidence. But the plaintiff solicitors in the same letter said “lightly”, I think Mr Hingorani said “lightly” :

“Please be informed that our client will tender and adduce as hearsay evidence all the documents/items referred to in her various lists of documents filed in this proceedings at Trial without calling the makers thereof.”

16.  Thereupon, the defendant, there and then, took the hint and, as Mr Hingorani submitted to the effect that :

“Aha, opportunity presented itself to us!”

17.  The defendant’s solicitors immediately gave notice to the other side requiring Mr Shu to be called as a witness to be cross-examined by the defence. They also later on wrote to the court and copied to the other side and for the first time raised the following contention in paragraph 9 thereof :

“Upon watching the video it is noted that the recording was not continuous and with a lot of pauses, it thus caused for question whether the video is an edited one, and if or is not, the reasons for pauses during the recording process, the defendant is considering calling Mr Shu to give evidence in this regard.”

and it then went on to say that as Mr Shu would be called as a witness, according to the Solicitors’ Professional Conduct Principle 1.03,  Principle 5.10 and Principle 10.13, a solicitor must not accept instructions to act as an advocate for a client if it is clear that he or a member of a firm would be called as a witness in this case unless his evidence is purely formal.

18.  Going back to the hearsay rule for the time being, apparently since about 1999, it is no longer required to give a hearsay notice once documents were served or discovered to the other side. Documents constituting question of hearsay would be admissible unless the other party serve in the past called a “counter notice” or a notice to the effect that the the other party would like the maker of that document to be called and cross-examined by the other party. That would be pursuant to Order 38, rule 21 which provided that :

“(1)  Where a party tenders as hearsay evidence a statement made by a person but does not propose to call the person who made the statement to give evidence, the Court may, on application—

(a)  allow another party to call and cross-examine the person who made the statement on its contents;

(b)  allow any party to call—

(i)  additional evidence to attack or support the reliability of the statement;

(ii)  additional evidence to attack or support that first-mentioned additional evidence.

(2)  Where the Court allows another party to call and cross-examine the person who made the statement, it may give such directions as it thinks fit to secure the attendance of that person and as to the procedure to be followed.”

19.  In response to the two applications of the defence, Mr Hingorani submitted that they should be refused as the defence has been trying to do something from the back door and they therefore should not be allowed to do it again from the front door. Mr Hingorani submitted that this is another attempt to sabotage the trial date by getting rid of the plaintiff solicitors acting for her, and the plaintiff cannot continue on with the trial without an adjournment to instruct another firm of solicitors.

20.  The questions now before me are actually :

(1)  should Mr Shu be called as a witness; and/or

(2)  even if he is called as a witness, will his evidence be purely a formal one and therefore should not disable him or his firm to act as solicitors for the plaintiff.

21.  In this respect Ms Remedios agreed to three propositions :

(1)  there is no prohibition for a solicitor to act for his spouse;

(2)  even when a solicitor acting for a party is called also as a witness, if his evidence is purely formal he needs not cease to act for that party; and

(3)  if a solicitor is a witness of fact, he of course cannot also act for a party in the same case.

22.  Thus the main question now before me is this one : if Mr Shu has to be called as a witness, whether his evidence is “purely formal” in producing the video tape or, as submitted by Ms Remedios, that it was not so because there is now certain allegations of editing or concealments of certain parts of the tape. To put it crudely, that means tampering with the tape and that actually is a serious conduct of perverting the course of justice by a solicitor, being an officer of the court.

23.  The next question to decide is whether the defence herein has sufficiently raised the doubt of editing just on their allegations or their findings that the recording was not a continuous one but with a lot of pauses. (By pauses, I think it also meant “stop” and re-recording or, in any event, after each and every pause or stop, there was a subsequent re-recording until the end of the tape.) I do not think so. Unless the recording is a continuous one without pause or stop, a video recording would inevitably contain pauses and stops. They are not evidence of editing by themselves. If the defence is serious in their suspicion that any editing (i.e. tampering with a recordings), they should examine the tape scientifically in good time by their own expert who would have to produce a report with his reasons or basis for making that serious allegation. The presence of pauses and stops alone is not sufficient to raise a prima facie case of tampering with the tape. This is also not sufficient for the court to exercise its discretion to make an order that Mr Shu should be called as a witness, to be cross-examined by the defence.

24.  I came to this conclusion also by reasons of the following matters :

(1)  The defence had already agreed way back to 13 February 2007 that the defendant agreed after watching the tape that the video tape shows the operation of the Flying Fox.

(2)  This concession was made by the defence before the stipulated time of Master Kwan for the parties to agree on the adducing of the tape taken by Mr Shu.

(3)  The indication that the defence would like the plaintiff to call Mr Shu as a witness to be cross‑examined at the trial was only made about 12 days ago before today, the first day of the trial.  There is no stipulated time under rule 21 when a notice can be given and an application can be made or should be made to the court for such an order.  Under the new civil justice reform, when the court is considering applications of this kind, it will take into account of :

(i)  the delay of the applicant; and

(ii)  the effect of the application on moving the milestone dates, one of them being the trial date.

(4)  I must say that I also agree with Mr Hingorani that the ultimate motive behind the first application was, to put it crudely, to get rid of the plaintiff’s solicitor acting for the plaintiff in their second application so that the trial cannot commence today.  To my mind, any reasonable period of time required under rule 21 had already elapsed after 19 August 2009 the latest, i.e. about 12 days ago.

(5)  In this case, there is insufficient evidence before me to warrant the making of an order to require Mr Shu to be called as a witness to be cross-examined.  The evidence he is going to give in relation to the video tape is “purely formal”.

25.  If the defence is serious in their allegation that the tape had already been tempered with, they should obtain a more scientific evidence at an earlier time so that the plaintiff could be given an opportunity to rebut the allegation with their own expert. In this case there is no other evidence at all. This is entirely unacceptable in this modern age. By this modern age I mean this, and this is not said as a joke or in a sarcastic manner : Nowadays in Wimbledon they rely on electronic equipment to decide scientifically whether a ball is out or in and not just on the human eyes of the linesman or the umpire. This shows the wide-spread use and availability of scientific evidence and I see no reason why the defendant did not base their allegation on such evidence.

Conclusion

26.  Accordingly I do not consider there is any sufficient evidence before me to warrant an order that :

(1)  Mr Shu should be called as a witness to give viva voce evidence so that he can be cross‑examined by the defence.

That application is refused and accordingly the further application that :

(2)  Mr Shu, being a witness of fact, should not continue on to act for the plaintiff and his firm should also cease to act for the plaintiff.

is also refused.

Further considerations

27.  Lastly I would like to add the following three remarks which are the possible scenario when an order under Order 38, rule 21 may be made.

28.  The first scenario is when a solicitor is a witness of fact, say if, and I emphasise on the word “if”, Mr Shu also witnessed how the accident occurred, then he should not be a solicitor acting for the plaintiff. However, according to the evidence so far, he was not present.

29.  Secondly, if the solicitor is clearly not a witness of fact and, even if he had certain evidence to give but his evidence is so-called “purely formal”, then there is no reason why he cannot act for a party in the case. However every solicitor should know that taking certain evidence of a case is taking a risk that he may be required by other side to give evidence and he may become more than a witness giving evidence purely on a formal basis.

30.  Thirdly, if it is not clear whether the solicitor is giving evidence purely on a “formal basis” then this issue has to be tried as a preliminary point by hearing that solicitor’s evidence first. In other words, the court or tribunal may hear evidence first before a decision is made. Here, I disagree with Mr Hingorani that there is a problem of whether that solicitor or his firm should continue to act for his client in such proceedings of deciding whether the solicitor’s evidence is “purely formal” or not. To my mind they should be allowed to continue to act until the court is satisfied, on a balance of probabilities, that the solicitor’s evidence is or is not purely formal. If the outcome of the proceeding is that it is not purely formal, then an order will be made to the effect that he should cease to act by a direction or order of the court.

31.  The case of High Fashion Garments Co. Ltd v. Ng Siu Tong & Ors [2003] 2 HKC 562 cited by Ms Remedios obviously is not directly on all fours with this case. Deputy Judge Lam (as he then was) decided that the fact of the case is whether the plaintiff could just rely on the evidence of a witness by way of affirmation either under Order 38, rule 2 or alternatively section 47 of Evidence Ordinance without calling the maker. The maker was a witness, Miss Lam, being a formal director of the plaintiff who had emigrated to Singapore. She did not want to come back to Hong Kong because of the SARS crisis. Her evidence was the main evidence in support of the plaintiff’s claim for compensation from the defendants under the equitable principles of “knowing receipt” or “knowing assistance”. The plaintiff alleged that one Mr Lau had misappropriated the plaintiff’s stock and sold it to the defendants. The plaintiff also alleged that the defendants should have known the goods were stolen. It was only decided in that case that Miss Lam should be called as a witness to give her evidence in order that she should be cross-examined by the other side. If she considered that it would be dangerous for her to come back to Hong Kong because of the SARS crisis, she should give evidence through video link.

32.  Although the case is also concerned with certain video, it did not involve any video tape; video link is completely different from video tape and the consideration of section 49 concerning considerations of weighing the hearsay evidence, as rightly pointed out by Mr Hingorani, that the section only concerned with the weight of the hearsay evidence and the reliability of the evidence with certain particular items to be considered under subsection 2(a) to (g). Although concealment or edited account of an original statement is stated under subsection (2), it is after all considerations of weight rather than admissibility, but even if they are concerned with whether a witness should be called, it is far from the present case where allegations were made on very flimsy or weak basis. Accordingly, I do not consider that I should accede to the request through these two applications of the defendant.

33.  Costs of and incidental to these applications be to the plaintiff in any event or the taxing of the Taxing Master. The time involved is between 10 a.m. and 4 p.m. with adjournments in between.