VELATEL GLOBAL COMMUNICATIONS INC AND ANOTHER v. CHINACOMM LTD AND OTHERS

HCA 1978/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1978 OF 2011

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R U L I N G

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1. There are two applications before me today: (1) the renewed application by the defendants to adjourn the trial; and (2) leave to adduce the witness statements of Li Hong Ji.

Renewed Application to adjourn the Trial

2. I have given reasons on 22 March 2016 as to why I rejected the application to adjourn.  The whole thing arose out of the delay of D6 to inform his lawyers about his arrest which occurred in October 2015 and then there was no action to try and obtain his evidence by letter of request or video-link. He informed his lawyers only in about February 2016.  At the hearing on 22 March 2016, this court took the view that the evidence then before the court in support of the adjournment was flimsy and not credible. 

3. Since that date, there had been some developments.  What was estimated to be a trial allegedly took place on 18 April 2016 but was adjourned for the prosecution in the Mainland to obtain further evidence.  No further trial dates had been fixed.  The anticipation in paragraph 10 of my decision dated 22 March 2016, if D6 were acquitted, or if the trial in the Mainland finished in good time before today, was not met. 

4. The defendants’ solicitors, Lam & Co, have in the meantime applied for the issue of a letter of request from Hong Kong to the Mainland court but, out of wrong steps taken, one was issued only by about 27 April 2016.  Given the lateness of that issue of the letter of request, one cannot expect the Mainland courts to entertain the request by today. 

5. Next, there was some effort shown by Lam & Co to try and contact the Wuhan court to get an opportunity to see D6.  This was a step which, to their credit, Lam & Co had taken in the interests of the defendants, knowing that the Wuhan court would not usually entertain that kind of letter.

6. Up till now, we could only have hearsay evidence as to the incarceration of D6 and the condition of his trial.  However, the acts of issuing a letter of request and the letter of Lam & Co to the Wuhan court was evidence to show some attempts to try and get information from D6 which may be of use to the Hong Kong court.

7. I have considered the submission of Mr Chan, counsel for the plaintiffs.  He draws to my attention that Lam & Co was at least able to obtain some kind of instructions, for example, to try and put in a further witness statement of Li Hong Ji.

8. However, in my view, what is important today is the fact of D6’s inability to give evidence in person in Hong Kong.  Lam & Co purportedly got information only through Xi of the PRC lawyers.  It was not very substantial evidence, I have to say.  For example, there was nothing to show that Xi had taken instructions from D6 to pass on to Lam & Co about how to deal with the present case. 

9. But taking into account all the circumstances, reluctant though I may be, in the interests of justice, I consider I should give the defendants an opportunity so that D6 may hopefully have a chance to give evidence on their behalf.  However, this is subject to the following conditions:  the defendants are to pay costs, to be summarily assessed in a moment, to the plaintiff forthwith.  I will fix a hearing on 23 June 2016 at 10 am.  But before that date, I require the defendants and the plaintiffs to jointly report to me as to whether or not the costs have been paid.  If the costs have not been paid, 23 June 2016 would be the date set down for a short trial for the plaintiffs to prove their case.  On the other hand, if the defendants do pay up the costs, 23 June 2016 will be used to update the court on D6’s position. 

10. I make clear that I will not be content with some general information that D6 was incarcerated, or that the trial date is unknown.  I need firm evidence as to when D6’s trial, if ever, will be held, how long it will last, written proof from the defendants that they will pursue the claim with D6 as witness to give evidence; the position on the letter of request or whether it is possible to take evidence by way of video-link.  I make clear that the court will not wait indefinitely for D6’s return.  The next trial date will still be fixed, if necessary, regardless of whether or not D6 is able to return to give evidence.  It may well be a trial where the intended witness is unable to turn up to give evidence and the defendants run that risk.

11. I come now to deal with the question of costs.  It will not be taxed costs but summary assessment. 

(Submissions on costs)

The Application to adduce Witness Statement

12. I reject the application on the following grounds: 

(1)  It is too late and the application can be dismissed on this ground alone. 

(2)  There had been a prior application at the first PTR to adduce Li’s witness statement which was rejected on the ground that there was no draft attached to the summons. 

(3)  The relevance of this witness statement is not known. It purports to evidence the flow of moneys in relation to this matter as stated in the letter of Lam & Co dated 12 April 2016.  This witness statement has exhibits which duplicated those already produced by D6 in his witness statement.  There is no explanation as to why Li has to produce the same exhibits by a new witness statement. 

(4)  The defendant’s purported explanation for this late witness statement was that the records in Li’s witness statement took some time to compile.  This could not be true as most of those records have been exhibited to D6’s witness statement. 

(5)  Li cannot attend the trial today as he is one of the defendants to stand trial with D6 in Wuhan.  Li is now on bail but, allegedly, his liberty to travel to Hong Kong is restricted.  If he cannot come to be cross-examined, his witness statement cannot be used.

For all these reasons, I dismiss the defendants’ application by summons.

13. As to costs, both applications are unmeritorious but, eventually, the court, in view of the recent developments, adjourned the trial.  It has to be recognised that there is some prejudice to the plaintiffs in view of this adjournment.  I consider that costs ought to be borne by the defendants and it ought to be on indemnity basis.  Looking at the costs statement, I am satisfied that the defendants ought to bear costs in the sum claimed, in the amount of $269,599.  Payment within 14 days.

14. The joint letter from the plaintiffs and defendants should reach me by 25 May 2016, at latest.