ZEBRA INDUSTRIES (OROGENESIS NOVA) LTD V. WAH TONG PAPER PRODUCTS GROUP LTD Defendant

HCMP 436/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 436 OF 2013

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D E C I S I O N

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1. On 2 July 2014, the plaintiff took out a summons for leave to file and serve three supplemental witness statements. For the reasons set out in paragraphs 83 and 84 of my decision in these proceedings dated 27 October 2014 relating to that application (among others), that summons had been adjourned sine die since October 2014 with liberty to restore. The plaintiff had not restored that summons after my decision was handed down on 27 October 2014. Recently the plaintiff has prepared supplemental trial bundles in addition to those prepared by the defendant. In the plaintiff’s bundles are included the three supplemental witness statements in question. The defendant took issue with their inclusion. At the directions hearing on 5 February 2015, the parties were content to proceed on the basis that the plaintiff had restored for hearing, and wishes to pursue, its summons for leave to file those statements.

2. Mr Chan who appeared for the defendant on 5 February 2015 submitted that the statements should not be allowed because they relate only to the matters that the plaintiff sought to raise by re-amendments to its statement of claim, which were disallowed by me.  Because of the way the matter arose, there was only very brief argument.  There is however some urgency in dealing with it since the trial will commence on 2 March 2015.  I indicated that I would try to hand down my decision on the plaintiff’s application within the week following that hearing as thereafter I shall be on leave until the commencement of the trial.

3. Subsequently, at my request made at the hearing, the defendant indicated, by letter to the court copied to the plaintiff dated 9 February 2015, the parts of the statements to which the defendant objects on this ground.

4. By a letter faxed to the court on 10 February 2015, the plaintiff contended that only the parts of the statements that refer to the words “re-amended statement of claim” should be removed and that the defendant’s objections were excessive.

5. By proceedings taken out separately in HCMP 3280/2014, the plaintiff applied for extension of time to appeal against my decision of 27 October 2014 to refuse leave for the proposed re-amendments of the statement of claim.  The Court of Appeal (Kwan and Barma JJA) dismissed that application in their decision handed down on 9 February 2015.  I must therefore proceed on the basis that the scope of this case is defined by the state of the pleadings consequent on my decision dated 27 October 2014.

6. In the shortness of time I consider that I should hand down my decision as soon as practicable, setting out my reasons briefly, so that the parties know where they stand in relation to the trial which is scheduled to commence on 2 March 2015.  I shall not recite the background and procedural history of this matter here.  It has been stated in my decision dated 27 October 2014.

7. It seems to me the plaintiff has misunderstood the nature of the defendant’s objection.  This is the plaintiff’s application for leave to adduce supplemental witness statements.  The burden is on the plaintiff to demonstrate why the statements should be admitted, especially at this late stage and given that I have disallowed most of the proposed re-amendments to its statement of claim.  The supplemental statements should not be admitted unless (at the very least) they are relevant to the issues in question and are not an attempt to re-produce what has been struck out or excluded under previous orders of the court.  The issues in question are defined by the pleadings.  So it is not only those sentences in the statements that actually refer in terms to “the re-amended statement of claim” that are to be excluded.  Any matter contained in the statements that relate really to the claims which the plaintiff sought to introduce by way of re-amendment and which I have excluded should not be allowed.

8. The plaintiff contends that Au J confirmed that it could at the trial of the present action go into the history of the dispute between the parties and the alleged false testimonies given by the defendant. That in my view is not the correct understanding of what Au J decided.  On 11 April 2014, Au J struck out a number of passages from the witness statements and affirmations (and in some instances the entire document) filed by Zion for the purposes of the trial of these proceedings, subject to Mr Saatori being

“allowed to state in the ‘Witness Statement of Elijah Saatori’ filed herein on 17^th July 2013 the Plaintiff’s position (namely that the relevant costs orders were obtained by the Defendant’s fraud or perjury, those orders are not accepted by the Plaintiff as valid and whether there was fraud or perjury will be determined by the court separately in the Plaintiff’s application for leave to issue committal proceedings)”.

9. I refer also to paragraphs 68, 72, 73, 75 and 76 of my decision dated 27 October 2014 regarding on the previous decisions of Au J and the Court of Appeal on the scope of the action and the relevant evidence.

10. Mr Saatori submitted to me on 5 February 2015 that Au J’s order was wrong, that many of the matters the learned judge struck out were highly relevant, and that I should permit reference to the materials the plaintiff has included in its supplemental trial bundles.  In fact this seems to be a major purpose of the supplemental witness statements.  Mr Saatori’s own supplemental witness statement reads (at paragraph 6(A) on page 4):

“This Supplemental Witness Statement now corrects this obvious, overt error by the High Court …”

11. That is obviously a misconceived basis on which to seek to adduce the supplemental statements.  The orders made by Au J are extant orders.  There is no basis for the plaintiff to ignore them.

12. Further, the supplemental statements, which were prepared together with the summons in July 2014, contain matters which have since been superseded and become irrelevant, such as the application for leave to appeal (HCMP 1503/2014) against Au J’s order striking out the Reply Affirmation except Exhibit 3, which was dismissed by the Court of Appeal (Cheung and McWalters JJA), and the application for leave to apply for committal of the defendant for contempt, which was dismissed by Mimmie Chan J on 31 October 2014.

13. Much of what is in the supplemental witness statements is mere commentary on or argument relating to the defendant’s evidence, which has no place in a witness statement.

14. There are also other parts of the supplemental statements that are repetitive of what is already in the other material, needless quotations, simply abusive remarks about the defendant and its representatives, or otherwise passages that are of no relevance or consequence.

15. I have gone through the supplemental statements and the defendant’s list of the parts to which it objects.  The following parts of the statements should in my view be excluded for one or more of the reasons I have mentioned:

16. Supplemental witness statement of Elijah Saatori:

–  p.2 (paragraph 1A) to p.11 (before paragraph H)

–  p.11 (paragraph 11) to p.12 (paragraph D)

–  p.14 (paragraph II) to p.24 (paragraph XI)

–  p.25 (paragraph IV and paragraph (c) from “The so called …” to “AD 2012];”)

–  p.27-p.28 (paragraph (j))

–  p.28 (paragraph (l)) to p.30

–  p.32 (top) to p.34 (paragraph V)

–  p.34 (paragraph VII) to p.36 (first two lines)

–  p.36 (paragraph V) to p.38 (first three lines)

–  p.38 (paragraph V) to p.39

–  p.45 (paragraphs H(ii) and I) to p.47

–  p.48 (paragraph F) to p.58 (paragraph III)

–  p.58 (paragraph V)

–  p.59 (1^st line starting from “Thus LIE is, as ever …”) to p.60 (before “Totally Confirmed …”)

17. Supplemental witness statement of Roberta Coronetta:

–  p.1 (paragraph A 5^th line starting from “The sum total …”) to p.19 (paragraph 119)

–  p.21 (paragraphs 126-128)

–  p.22 (paragraphs 132-135)

–  p.23 (paragraph 136)

–  p.23 (paragraph 140) to p.24 (first three lines)

–  p.24 (paragraphs 143-144)

–  p.27 (paragraphs (vii)-159)

–  p.28 (after paragraph 161) to p.32 (paragraph 191)

–  p.32 (after paragraph 193) to p.39 (paragraph 223)

18. Supplemental witness statement of Karl Jurgen Thorwirth:

–  p.2 (paragraph 5) to p.3 (paragraph 16)

–  p.4 (paragraphs 24-27)

–  p.5 (paragraph 33 starting from “when the defendant …”) to p.24 (paragraph 185)

–  p.25 (paragraphs 193-197)

–  p.26 (paragraph 203) to p.29 (paragraph 227)

19. Subject to these exclusions, I give leave for the plaintiff to file the supplemental witness statements.