IP TIN CHEE, ARNOLD v. CHING HING CONSTRUCTION CO. LTD.

HCA 3675/1985 & 11768/1995

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3675 OF 1985

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R U L I N G

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1. In the course of this trial, on 15 October 2002, a Madam Koo contacted one of the executrix of the estate of Ip Ching Ping and indicated she could give some material information regarding the subject matter of this trial. Madam Koo was apparently an old acquaintance of Ms Wong Miu Shim and she learnt about the trial from the newspaper. According to what she said, Madam Koo had been quite close to Madam Wong in the old days.

2. Unfortunately, Madam Koo is suffering from certain physical disabilities. She is an old lady of 87 years old and is confined to her home. She is unable to walk. According to the Affidavit of the solicitor of Ching Hing and the estate of the father ["the Estate"], she also suffers from incontinence which causes her much inconvenience and embarrassment.

3. The solicitor has obtained a statutory declaration from her and Ching Hing and the Estate wished to put in the same by way of hearsay evidence. A hearsay notice was issued with the leave of the court. Solicitors for Arnold Ip filed and served a counter notice. They contended that Madam Koo can be called as a witness, whether by video-link or adjourning the Court to the residence of Madam Koo.

4. I am asked to determine whether the statutory declaration is admissible in these circumstances. Since the two actions involved were commenced in 1985 and 1995 respectively, the old rules apply. The relevant pieces of legislation are the old Section 47 of the Evidence Ordinance and old O. 38 r. 21 to 29.

5. Mr Yu SC, counsel for Ching Hing and the Estate, argued that the case comes within O. 38 r. 25 in that Madam Koo is unfit by reason of her bodily condition to attend as a witness. He stressed that unfit does not mean incapable. Further, the issue is fitness to attend the court as opposed to fitness to give evidence by other means, e.g. by video link as proposed in the Counter Notice. He contended that if the court is satisfied with that, the court must admit the statutory declaration. In the alternative, if the court is not so satisfied, the court still has a residual discretion under r. 29 to admit the hearsay statement as evidence. Mr Yu submitted that the modern trend is to allow hearsay evidence to be put in and the court can then assess the weight to be attached to such evidence. He cited the dicta of Balcombe LJ in Ventouris v Mountain (No. 2) [1992] 1 WLR 887 at 899F.

6. Leading counsel for Arnold Ip, Mr Chan SC opposed the admission of the statutory declaration as hearsay evidence. He pointed out that there was no medical evidence to substantiate the unfitness of Madam Koo. Further, the conditions of Madam Koo as deposed to by the solicitor for Ching Hing and the Estate were not such that Madam Koo could not be brought to court physically to give evidence. He submitted that there was no reason why Madam Koo could not come to court in a wheelchair to give evidence like, for example, witnesses in personal injury cases. He said there was no evidence as to how serious the problem of incontinence was and in any event, he did not anticipate lengthy cross-examination of Madam Koo. In view of the rejection of video-link as a means to deal with her evidence, Mr Chan invited the court to regard this as more a case of a witness unwilling to be subject to cross-examination than a case of being unfit to attend.

7. I am not prepared to draw the inference that even if she were physically fit, Madam Koo would still be unwilling to come to court to testify due to her wish to avoid being cross-examined. The circumstances under which Madam Koo volunteered information to Roseanna Ip impressed me that Madam Koo was doing all these out of a sense of righteousness. If she had remained silent, nobody would locate her since the Ip sisters had not maintained contacts with her for quite some time and they were not aware of the evidence that she would be able to give. It is quite natural for a lady in the condition of Madam Koo to be cautious about her health and for such a person, giving evidence could be a stressful experience.

8. However, I still have to ask myself whether the case comes within r. 25. Whilst I accept Mr Yu's explanation as to why medical evidence is not forthcoming, the burden of proof is on the party seeking to have the statement admitted as evidence to show that the case falls within r. 25. I have read the Affidavit made by the solicitor in support of the application and the statutory declaration of Madam Koo several times. Although I have no reason to doubt the concerns of all involved about the health and well being of Madam Koo if she were required to come to the court to give evidence, I do not think the evidence establish a case of unfitness to attend as a witness. I accept that "unfit" in this context does not necessarily mean "physically incapable", r. 25 does not refer to unfit to attend "the court" to give evidence. In my judgment, "unfit to attend as a witness" include attending somewhere else for the purpose of giving evidence at trial through video-link.

9. I then turn to the alternative limb of Mr Yu's submissions. Whilst r. 29 gives wide power to the court to admit hearsay evidence by way of residual discretion, an important consideration in the exercise of such discretion is to balance the prejudice which might cause to the respective party if the discretion is exercised one way or another (see Morris v Stratford-on-Avon Rural District Council [1973] 1 WLR 1059). The proposed evidence of Madam Koo contained in the declarations is, at least on the face of it, potentially capable of having a significant impact on the trial. If the court exercises its discretion to admit the statement as evidence, Mr Chan may lose the chance of cross-examining this witness. Since I am not able to be satisfied that Madam Koo is unfit to attend as a witness, I do not think it is appropriate for me to exercise the discretion under r. 29 to admit the same as evidence.

10. I must say that I have come to this conclusion with some reluctance. The court is always anxious to give parties full opportunity to adduce all relevant evidence. However, in the circumstances of the present case, for reasons given, I do not feel able to admit the declarations of Madam Koo by way of hearsay evidence under the rules.