XCHRX LEUNG WING YIU v. SIU KING YUEN AND OTHERS

HCA5382/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.5382 OF 1996

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D E C I S I O N

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1. There are two applications before me : one is an application by the plaintiff to strike out the witness statement of Mr Chan Yat Ming, Gary ("Mr Chan"), the other is an application by the plaintiff to obtain an unless order against all three defendants for not complying with the request for further and better particulars in respect of the answers to the interrogatories.

The striking out application

2. I will deal with the first application first. Mr Chan is one of the witnesses of the 1st and 2nd defendants. In the witness statement, Mr Chan explained that he was asked by the 1st defendant in mid-1996 to prepare the ledger accounts of the 2nd defendant. He was also responsible to make audit adjustments to the ledger accounts in accordance with the audit reports prepared by the auditor of the 2nd defendant. He then explained the various adjustments he made to the ledger accounts.

3. The plaintiff attacked the witness statement on the basis that it offends against the hearsay rule. It is said that the documents produced by Mr Chan in his witness statement showed that many accounting entries were made by a person called "Edith" for the period from November 1995 to February 1996, and the transactions were supported by receipts with dates between November 1995 and February 1996. As Mr Chan only took up the matter from mid-1996, he did not have personal knowledge of the truth of his own statement. Further, adjustments were made according to informations provided by others to Mr Chan.

4. In my view, the fact that the original entries and supporting documents were not prepared by Mr Chan himself does not mean that he could not give evidence on the adjustments he had made on the ledger accounts. By referring to the original entries, primary documents and informations provided by others, it does not mean that he is asserting the truth of these matters. A hearsay notice had been served on these documents on 14 September 2000 subsequent to the service of the summons to strike out. When Mr Chan explained how he made the adjustments, neither is he asserting the truth of the adjusted accounts. Ultimately, whether the original documents are true or not, or whether the matters which had caused him to make adjustments are true or not, are matters to be decided at the trial upon the hearing of all the evidence. This being the case, I fail to see how the plaintiff can succeed in striking out the witness statement.

5. It is said that the hearsay notice was served subsequent to the witness statement and it was served out of time. In my view, the objections are purely technical. In fact, Mr Tang, solicitor for the plaintiff, stated that if I grant leave to serve the hearsay notice out of time, he would withdraw the summons to strike out. It is apparent that there really is no substantial objection to the hearsay notice being served out of time. The trial is only to take place in May of next year. I shall grant leave to the 1st and 2nd defendants to serve the hearsay notice out of time and dismiss the plaintiff's application to strike out.

Unless order application

6. In relation to the second application by the plaintiff, I am satisfied that the request is properly made and that the defendants should provide further and better particulars to their answers. However, I would not impose an unless order as requested by the plaintiff, instead, I would order the defendants to provide the answers within 14 days.