Tam Lup Wai, Franky v. Vong Shi Ming, Nicolas

HCA358/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCA358 OF 2001

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R U L I N G

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1. This is a finely-balanced matter. The Plaintiffs wish to put in witness statements from two witnesses who have signed witness statements on 18 June and served on the Defendants the following day. The chronology is important in this matter.

2. The action was started on 19 January last year. On 28 May last year, Master Cannon ordered the parties to file and serve their witness statements within 60 days. On 17 August the parties exchanged their witness statements. There was a checklist review hearing on 4 September and on that occasion, the Plaintiff indicated to the court that he was only proposing to call one witness.

3. What has happened is that the Plaintiffs have now secured the agreement of Mr Lee and Mr Yau to give evidence on his behalf. I have, of course, read those witness statements, and clearly, they are highly relevant to the issues which would need to be determined at the trial and, not surprisingly, today this application is resisted.

4. Mr Yuen, who appears on behalf of the Defendant, has taken a number of points. He relies first of all on the chronology which I have drawn attention to, and there is no doubt that this evidence now comes in very late in the day.

5. In support of the summons, the Plaintiff has filed an affirmation which is dated 26 June, and he exhibits to that affirmation a letter, as TLW2, from his solicitors to the Defendant's solicitors. The body of the affirmation itself, which recites the attempts that have been made to obtain the consent of the two witnesses to give evidence, is at odds with the letter from the Plaintiff's solicitor dated 19 June, which seems to indicate that at the time of the checklist review hearing on 4 September, those solicitors had been unable to contact the two witnesses to find out if they were really able to give evidence at the trial, and it was only recently that the Plaintiff had been able to contact them and to get their approval to give evidence. Of course, the affirmation itself seems to indicate that contact had been made months earlier.

6. That difference is one of the matters which Mr Yuen invites me to take into account in the exercise of my discretion.

7. The other matter which he quite rightly relies on is the question of delay and the effect of that delay. He says his clients will suffer, as it is put, irreparable prejudice. I wonder whether perhaps that is putting it a little too high. Mr Yuen indicates that investigations are ongoing with a view to finding material which could be used to impeach the bona fides and the independence of these two witnesses. Had his clients been given earlier notice that these witnesses were to give evidence, then of course they would have had much more time to prepare themselves, and what Mr Yuen says is that it is quite wrong to confront his clients with this evidence so late in the day.

8. He rightly draws my attention to a decision of Hartmann J in the case of Mobil Petroleum Company Incorporated v Registrar of Trademarks [2001] 1 HKLRD 225. Hartmann J, having regard to the English authorities, and in particular the case of Mortgage Corporation PLC v Sando [1997] PNLR 263, set out the 10 considerations which a court should have in mind in exercising its discretion to extend time, and for my part I have been much assisted by, and I very much have regard to those principles.

9. As I indicated in the course of the argument, I take the view that this is a finely-balanced matter. Clearly this is highly relevant evidence, and I therefore have to balance the injustice caused to the Plaintiff if he were not allowed to deploy evidence of that sort in the trial, against the prejudice which may be caused to the Defendant, who is now faced with evidence of this sort rather late in the day; but when I say "late in the day", the evidence has been placed before the Defendant some two and a half weeks before the trial.

10. I have come to the conclusion that I ought to allow the Plaintiff to put in that evidence. Mr Yuen has, in general terms, indicated to me the sort of investigations that his solicitors are carrying out, so I am going to make an order that is perhaps a little unusual in the circumstances.

11. First of all, I shall allow these witness statements to be filed on behalf of the Plaintiff. I shall give leave to the Defendant to file any supplemental statements in reply no later than 9.30 am on 8 July - that is to say on the morning of the trial, half an hour before the trial is due to start - and, in order to give consideration to what the Defendants are having to do, which is to investigate the bona fides of these two witnesses in relation to this matter, I shall also give the Defendant leave to renew his objections to the giving of that evidence at the trial.

12. And so what I have in mind is that Mr Yuen, or whoever is counsel for the Defendant, should be able to re-open the matter, and if he can then demonstrate, notwithstanding all the efforts that have been made since 19 June to get evidence which could properly be used to impeach these two witnesses, I will allow him to re-visit that issue, and he will have to place before me more information about the course of the investigations and the nature of the evidence that is sought to be obtained.

13. So at this stage, I shall allow the filing of those witness statements. I shall give leave that the Defendant can file any evidence in reply and give him, effectively, up to the last moment before the trial starts, and I shall also give him leave to renew the objections.

14. I should also indicate that by then, I would expect much more material to be placed before me of a very persuasive kind before I stop these two witnesses actually giving evidence.

15. The costs of and occasioned by this application will be to the Defendants, in any event, with certificate for counsel.