YIU WAH v. SEMK INDUSTRIAL (HOLDINGS) CO LTD

HCA3847/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.3847 OF 2003

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J U D G M E N T

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1.    This is a hearing today for further directions in relation to a trial that is to commence on 6 June 2007, that is in less than a month’s time.  The date of the trial was fixed as early as December of last year.  So it has been ongoing for sometime and all the preparation had been done.

2.    At the last hearing on 20 April 2007, there was an order given by me under paragraph 2 in relation to witness statements, that of a new witness if there is no objection it can be filed within seven days, but if there is objection then directions will have to be sought.

3.    Today I have the hearing in relation to two disputed witness statements from two new witnesses and the matter become serious because it will have a huge impact on the course of the case, and in particular on whether the trial can take place on 6 June 2007 if the new witness statements come in.  It seems to me that having regard to the circumstances that I must refuse.  I will give my brief reasons for doing this.

4.    This is a trial which involves a claim by the plaintiff against the defendant company.  The plaintiff, Mr Yiu, was a former employee and the defendant company is called Semk Industrial Holdings.  The two sums alleged by the plaintiff to have been paid by the plaintiff to the defendant company are not disputed.  So really everything involve on the counterclaim by Semk Industrial Holdings Company against the former employee.

5.    In fact the counterclaim is by the two companies of the plaintiff which for convenience, I call them (“the plaintiffs”) against Mr Yiu and a company of Mr Yiu, alleging that various sums had been wrongfully dealt with by Mr Yiu and his company, so that a total amount now said to be just slightly under $2 million, $850,000 and $950,000 are owing (in relation to $850,000, it is now because item 29 under that Category 2 had been deleted).  Anyway a sum of slightly under $2 million is alleged to be owing by Mr Yiu and his company to the plaintiffs.

6.    The case involves some minute examination of past transactions.  The complication was because the case of the plaintiffs against the defendants is that various money had been paid by the plaintiffs to either the defendant or his company which were wrongly made or authorized.  The case of the defendants, that is, Mr Yiu and his company, is that everything was above board and authorized, and most of the transactions were in the nature of payments made to Mr Yiu and his company to assist and repay the plaintiffs in their wanting to have the necessary equivalent money in China by way of Reminbi so therefore it involved money exchange in China.

7.    The case now sought to be introduced at the last minute by the plaintiffs is to have a successor accountant of the company as well as a Miss Chan of their joint-venture Chinese manufacturer who handled accounts going into details of these transactions.  These are materials which should have and could have been long ago (with any kind of diligence) disclosed, and raised by way of witness statements, and detailed pleadings.  This was not done until now.  An explanation was advanced for the lateness.  I am not satisfied as to the explanation.  I asked Mr Yeung at the hearing whether he was offering any term for the court’s indulgence to allow this last minute substantial change to take place which had to come in by amendments of pleadings as well as by the new statements.  He offered the term of costs thrown away by the trial being adjourned as well as the vacating of the lis pendens against Mr Yiu’s property. 

8.    The term offered is really wholly inadequate.  I will have expected at least the term to include payment in of all money claimed by Mr Yiu together with the accrued interests together with all costs of Action so far.  Be that as it may, it makes no difference because in my view the case should not go off, the case should proceed without the new case being allowed in. 

9.    The disputed two witness statements of Mr Tse and Miss Chan must not come in and therefore I refuse the application of the plaintiffs in relation to those two witness statements.  Mr Chow’s statement was not objected to so it can be admitted.  The costs of today’s application must be to Mr Yiu and Mr Yiu’s company and to be paid forthwith.