LAM YIU FAI t/a ART CITY ENGINEERING CO v. MA TSZ KIN

DCCJ 625/2018

[2022] HKDC 941

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 625 OF 2018

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DECISION

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Introduction

1.  On 5 August 2022, the defendant took out a summons applying to serve a 2^nd supplemental witness statement.

Relevant facts

2.  In the witness statement of Lam Ka Lee filed on 23 July 2019, she mentioned of the recording of a meeting of herself with the plaintiff and the defendant on 30 September 2016 (“the meeting”).

3.  The compact disc of the audio recording was listed in the plaintiff’s supplemental list of documents filed on 10 September 2019.

4.  The transcripts of the audio recording were listed in the plaintiff’s 2^nd supplemental list of documents filed o 8 January 2020.

5.  A notice to act was filed on behalf of the defendant on 11 January 2021.

6.  A supplemental witness statement of the defendant was filed on 27 April 2021.

7.  On 24 June 2021, the action was set down for trial from 19 to 22 September 2022.

8.  A pre-trial review was held on 4 July 2022.

The defendant’s submission

9.  Mr Ian Chu, counsel for the defendant, accepted that it is a late application.  However, Mr Chu submitted that the supplemental witness statement is necessary for the just resolution of the dispute.  The supplemental witness statement is made to respond to the covert recording of the meeting which was obtained improperly and should be dealt with cautiously.  The defendant should not be deprived of the opportunity to respond to it.

10.  When the supplemental witness statement of the defendant was prepared, the defendant proposed to reply to the covert recording.  However, it was apparently not accepted by his former counsel.

11.  When a new counsel was engaged and upon advice, the defendant immediately took out the present application.

12.  Mr Chu submitted that no new issue is raised in the supplemental witness statement.  Therefore, there would not be serious prejudice to the plaintiff.

The plaintiff’s opposition

13.  Mr Stony Chan, counsel for the plaintiff, submitted that it is a very late application which was taken out one month after the pre-trial review and the trial is only 3 weeks away.  As such, delay itself is a ground to refuse the application.

14.  Relying on Converge Design and Construction Co Ltd v Mount Kelly International Ltd [2020] HKCFI 2433, Mr Chan submitted that change in legal team and of counsel is not an acceptable reason and prejudice is inevitably caused to the plaintiff in the disruption in the preparation for trial.

15.  Mr Chan informed this court that if the application is allowed, the plaintiff would not be able to respond to the defendant’s supplemental witness in 3 weeks’ time.  The trial may thereby be disrupted.

Discussion

16.  The recording of the meeting was disclosed by the plaintiff more than 3 years ago.  The defendant must be aware of its significance and has had more than ample opportunity to respond to it both before and after he was legally represented.  This is particularly so when the defendant filed his supplemental witness statement on 27 April 2021.

17.  I do not accept that the defendant said nothing about the recording out of respect of the former counsel.  In any event, the defendant was by that time represented by the same firm of solicitors and he has had the benefit of advice from them all along.

18.  To echo the view of Hon Mimmie Chan J in Hongkong Changyi Real Estate Development Ltd v Neo-China (Group)  Infrastructure Investment Ltd, HCA 1576/2011, 25/2/2014 and Converge Design (supra), delay alone is a ground justifying the refusal of a late application because this would inevitably cause prejudice to the other party in the preparation of the trial.

19.  In view of the forthcoming trial in 3 weeks’ time, I accept that the plaintiff would be put in the difficult situation of finding time to respond to the supplemental witness statement and the trial may thereby be disrupted.

Conclusion and order

20.  By reasons of the aforesaid, I do not find the defendant has demonstrated exceptional circumstances justifying the late application.

21.  The defendant’s summons must therefore be dismissed.

Costs

22.  I make a costs order nisi that the defendant shall pay the plaintiff the costs of this application on party and party basis with certificate for counsel, to be taxed if not agreed.

23.  In the absence of any application by letter to vary the same within 14 days from the date of this decision, the order nisi shall become absolute.