XCHRX LEUNG KWOK FU AND OTHERS v. KONG MEAU CO. LTD.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4427 OF 1997

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R U L I N G

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1. The Plaintiffs object to the admissibility of the affirmation of Patrick Chen Chiu Ming on two grounds. The first is that it infringes the requirements of an affidavit, in that it does not contain a statement of information or belief with the sources and grounds thereof. The second ground is that it contains legal argument and submissions.

2. I am not impressed with the second ground at all because most affirmations do contain some legal arguments and submissions but there are a lot of factual matters contained in Mr. Patrick Chen's affirmation as well.

3. The first ground, however, does cause some difficulties because it is a rule of affidavits that the contents of an affidavit sworn for the purpose of being used in interlocutory proceedings may contain statements of information and belief with the sources and grounds thereof. Now either the matter is one which the deponent has personal knowledge of or is hearsay. If it is hearsay, he must give statements of the information or belief with the sources and grounds thereof.

4. I note that no objection was taken at the last hearing before Waung J. on 2nd December when this affirmation had already been filed and served, and the objection was taken for the first time today. But is it a good objection because if it is, I must accede to it even though it was taken today.

5. The affirmation of Patrick Chen starts off in paragraph 1 by saying that he is the manager of the Defendant, Kong Meau Company Limited. He also says the two directors of the Defendant are his father and his mother, and that he is authorised by the Defendant to make this affirmation in opposition to the Plaintiffs' affirmation of Chan Sin Pok filed on 1st September 1997.

6. He doesn't say there that he speaks to matters that are contained in the affirmation of his own personal knowledge but as counsel for the Defendant has said, there are certain paragraphs where he deposes to the source of the information, for example, in paragraph 5(5), he deposes to certain facts that he is given to understand from his father and in paragraph 8(a) he deposes to certain facts that he is given to understand by Mr. Tsoi of the Defendant's auditors. But he doesn't say that he believes those matters. There are certain other facts that he deposes to without giving the source of information or belief. Mr. Chan, counsel for the Defendant, says that it is implicit that he is speaking of his own personal knowledge. I am not prepared to read that implication that it is a matter of his own personal knowledge where he does not depose to the sources or grounds because he is the manager of the Defendant. The Defendant is a limited company. They have other business activities, not only managing this particular building and unless the deponent deposes to personal knowledge of the facts that he deposes to where he does not give the sources or grounds of information, I am not prepared to read an implication into the affirmation that he does so of his own personal knowledge.

7. Regrettably, I think the objection is well-founded. But it is a matter as I said in the course of the argument that can be easily cured by a further affirmation from Mr Chen. Unfortunately for all the parties, for that to be done there will have to be an adjournment.

(Arjan H. Sakhrani)

Judge of the Court of First Instance