LEUNG PIK WA v. POH PO LIAN AND ANOTHER

HCA 681/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 681 OF 2011

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R U L I N G

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1.  This is my ruling on the objection taken by the defendants in respect of the last sentence of para 41 to para 75 of the witness statement of Mr Law Kiu Cheong on the ground that such evidence (“Subject Paras”) is inadmissible opinion evidence. 

2.  The arguments raise 2 main issues.  Before dealing with them, I shall address an objection based on the relevance of 2 payments amounting to HK$50m said to be the price for the “Shell Acquisition”.  It is conceded by Mr Wong that the plaintiff makes no claim in relation to those payments. However, I would not exclude the relevant parts of the Subject Paras for this reason alone because it appears that the Shell Acquisition was part and parcel of the acquisition of CYF and therefore the exclusion of the same may hinder a proper understanding of the evidence. 

3.  The 1^st issue concerns Mr Wong’s contention that a large part of the Subject Paras is “largely descriptive and factual”.  To begin with, the Subject Paras seek to advance a forensic analysis of the available accounting and other documents in order to construct a set of facts by inference.  This is typically an exercise carried out by a forensic accountant and is undoubtedly opinion evidence.  It is not disputed that Mr Law is not suitably qualified to provide expert accounting evidence. 

4.  It seems to be suggested that part of the Subject Paras is no more than what Mr Law, an experienced bookkeeper, understands to be the effect or meaning of certain accounting documents, and such evidence is admissible.  This is to be distinguished with those accounting documents which Mr Law created under the instructions of the Deceased.  There is no objection to the latter. 

5.  It should be pointed out that the admissibility of the accounting documents is not in issue.  Indeed, Mr Sussex does not dispute the existence of the payments identified in the Agreed List of Issues.  The dispute goes to whether the payments were made to repay the “Emperor Loan(s)”.  Given that the documentary evidence very much speaks for itself, it is doubtful why the disputed parts of Mr Law’s evidence are of assistance to the court.

6.  Pursuant to the directions of this court, a Scott Schedule has been filed by the plaintiff to identify which part(s) of the Subject Paras fall within the category identified in para 4 above.  The burden must be on the plaintiff to justify the admissibility of her evidence.  It is not for the court to tease out for the plaintiff which particular sentence or part thereof in the Subject Paras which may not be objectionable. 

7.  It appears to me that the plaintiff’s assertion that much of the Subject Paras are merely factual evidence is, with respect, made indiscriminately.  It is clear that the substance of the Subject Paras is to advance a case based on the opinion of Mr Law.  I find considerable force in the defendants’ reasons for objection stated in the Scott Schedule. 

8.  This brings me to the 2^nd issue which turns upon s 58(2) of the Evidence Ordinance, Cap 8.  With respect, the reliance by the plaintiff on this provision is misconceived.  It codified a common law rule which allows a lay witness to give opinion where such evidence is “adherent or closely associated” with his evidence of fact (see Sherrard v Jacob [1965] NI 151 at pp 4-5 (electronic version)).  A typical example for the operation of such rule would be evidence of identification.  Hence, such rule had been described as a “convenient and compendious mode of eliciting facts” (see HKCP 2015, Vol 2, rubic J1/58/12).  I am also guided by an instructive analysis of the rule in Expert Evidence: Law and Practice by Hodgkinson & James, paras 1-036 to 1-040.

9.  There is clearly a world of difference between the opinion evidence which may be allowed under s 58(2) and the Subject Paras.

10.  Having gone through the Scott Schedule, and bearing in mind the guidance derived from Chan Woon Fui v Chan Wing Suen & Ors, HCCW 350/04, 11 July 2005, §4 and Warham & Ors v Cathay Pacific Airways & Anr, HCMP 4400/01, 10 December 2008, §5, I would only allow such parts of the Subject Paras which can properly be said to be factual evidence within the knowledge of Mr Law, namely, paras 42(2), 42(4) (first 2 sections), 42(6), 42(9), 43 (first section), 47, 49, 50, 51, 58 and 60 (first section) as set out in the Scott Schedule to be admitted in evidence. 

11.  In respect of paras 74 and 75, I would allow the admission of such evidence which goes to show that the Deceased might be a man of some means. 

12.  Finally, I should mention for completeness that there are parts of the Subject Paras which contain legitimate factual evidence.  However, such parts are intertwined with illegitimate opinion evidence.  In any event, the factual parts of such evidence are repetitive and therefore disallowed.