DBS BANK (HONG KONG) LTD v. SIT PAN JIT

HCA 382/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 382 OF 2009

____________

_______________________________

REASONS FOR DECISION (No 2)
_______________________________

I. INTRODUCTION

1. The trial of the present action commenced on 11 February 2014.  Judgment was handed down on 2 April 2015 (“Judgment”).  On the same day I also handed down my Reasons for Decision (No 1) in respect of DBS’ application to produce certain transcripts of audio‑recordings of telephone conversations between DBS’ staff and Sit (“Reasons”). For easy reference, I shall adopt the abbreviations in the Judgment and Reasons.

2. On 18 February 2014 (5^th day of trial), DBS filed and served the affirmation of Lee Tiong Min (vice president, BMS, private banking of DBS, “Lee”) pursuant to section 20 of the Evidence Ordinance Cap 8 (“Ordinance”) (“Lee Aff”) to explain that the T/C Recordings of telephone conversations between customer and bank staff were bank records, how they were made by DBS, and how the dates of such T/C Recordings were identified in DBS’ audio-recording system. 

3. There was no dispute that DBS disclosed five CDs containing T/C Recordings of various telephone conversations between DBS’ staff and Sit.  The 1^st and 2^nd CDs were disclosed in DBS’ List of Documents filed on 24 November 2009, and the 3^rd and 4^th CDs were disclosed in DBS’ Supplemental List of Documents filed on 28 January 2011.  Transcripts of these T/C Recordings were subsequently prepared and disclosed in DBS’ 2^nd Supplemental List of Documents.  The Last CD was disclosed in DBS’ 3^rd Supplemental List of Documents filed on 11 October 2011.  DBS disclosed the New Transcripts of the Audio-Recordings in respect of 12 telephone conversations from the Last CD shortly before trial.  On the 1^st day of trial, for the reasons detailed in the Reasons, I allowed DBS to adduce the New Transcripts.

4. The issue addressed by the Lee Aff concerned the dates of the T/C Recordings that had been transcribed (“Transcribed Recordings”).  In the document bundle index of part F of the trial bundles, a date was given for the Transcript of each Transcribed Recording.  Further, there was a numerical code at the beginning of each such Transcript (“Numerical Code”), eg “20070205-1222” for the Transcript of the T/C Recording of a telephone conversation between RM and Sit being the first Transcript under item 77 of part F of the trial bundles.  DBS claimed the date of the relevant telephone conversation was embedded in the Numerical Code, eg 5 February 2007.

5. Mr Wong SC (and Mr Dawes with him), counsel for DBS, submitted that the Lee Aff was made in answer to a seeming suggestion in the opening submissions by Mr Lee SC (and Mr Lee and Mr Chau with him), counsel for Sit, that there was no clear indication as to the timing of the T/C Recordings, ie when the telephone conversations between DBS’ bank staff and Sit were audio-recorded.  Mr Wong SC submitted that out of abundance of caution the Lee Aff was produced to address the matter of the dates of the T/C Recordings.  He made clear the Lee Aff would be necessary only if Sit took issue over the dates of the T/C Recordings, but it would be quite unnecessary to have the Lee Aff if Sit did not take such issue.

6. Mr Lee SC submitted he was completely taken by surprise by this turn of events.  Whilst there was no dispute as to authenticity and/or genuineness of the T/C Recordings discovered/disclosed by DBS (and indeed Sit admitted he could recognise his own and Kong’s voice in the T/C Recordings) and there was no disagreement that the 10 ELNs were actually purchased via Sit’s Account, Mr Lee SC submitted DBS should not be allowed to fill in any lacuna in the evidence by late affirmation.  Mr Lee SC queried whether the T/C Recordings in respect of the 10 ELNs “[took] place in the order in which they appear to have taken place according to the transcript”, and claimed Sit was not in a position to say so.  Mr Lee SC also argued the Numerical Code was not good enough since the crux of the matter was whether the relevant telephone conversations in the T/C Recordings took place before or after the corresponding ELN transactions.

II.  LEE AFF

7. It is perhaps useful to start with the Lee Aff. In the Lee Aff, Lee explained that each audio-file of the T/C Recordings in the five CDs was named according to the date of the telephone conversation (ie by the Numerical Code). 

8. Lee explained that in accordance with DBS’ then and current internal policy, every telephone conversation involving the placing of orders by Sit should have been recorded.  All of the landline telephones of DBS’ client-facing and investment order-taking representatives, including that of Kong, were installed with automatic telephone recording devices, and thus all incoming/outgoing conversations conducted via those office landline telephones were automatically recorded onto tapes which were stored in DBS’ office.  All telephone conversations between DBS’ client-facing and investment order-taking representatives and Sit at the material time from 2004 to 2008 if made on office landline telephone would have been automatically recorded in the ordinary course of DBS’ business.

9. DBS introduced their new recording system on 10 November 2007.  Prior to such date, all telephone conversations between DBS and their customers conducted through a recording office landline telephone were recorded on data cartridges. These recordings prior to 10 November 2007 might be played back, rewound and forwarded but not searched.  DBS had special tape machines capable of playback of the data cartridges.  When playing back a recording, the tape machine could show the date when that recording was recorded.  So for telephone conversations recorded from 2004 to 9 November 2007 as contained in the five CDs, DBS identified the date of each of them by reviewing the information shown on the tape machine when the recording was played, and such date would be embedded in the Numerical Code as explained above.

10. Lee explained that after 10 November 2007, all audio conversations on office landline telephones were recorded on a digital audio recording system, and the data could be shown in the computer system.  So for those telephone conversations recorded after 10 November 2007 as contained in the five CDs, DBS identified the date of each such recording by reviewing the information recorded on its digital audio recording system, and also such date would be embedded in the Numerical Code. 

11. However, Lee noted there were some clerical errors in the Numerical Codes noted on some of the Transcripts in part F of the trial bundles as follows:

(a) at p 1779 the correct Numerical Code should be “20071105‑1208” instead of “22071105-1208”;

(b) at p 1872 the correct Numerical Code should be “20070626‑1516” instead of “20070627-1516”;

(c) at p 1873 the correct Numerical Code should be “20070626‑1551” instead of “20070627-1551”;

(d) at p 1893 the correct Numerical Code should be “20040429‑1830” instead of “20040426-1830”.

12. Lee confirmed that the dates of all telephone conversations were recorded in DBS’ ordinary course of business, and such recordings were in the custody and control of DBS. He believed that after retrieval of each telephone recording (contained in the five CDs) from the data cartridges or from the digital audio-recording system, the relevant audio‑file was named according to the date of the telephone conversation as shown in the tape machine or computer screen as aforesaid.

III.  OTHER INFORMATION AS TO DATES

13. Mr Wong SC submitted the Lee Aff should not be contentious since the dates of the Transcribed Recordings could be verified either from the contents of the relevant Transcripts and/or from other primary documents adduced by DBS. 

14. At the hearing on the 6^th day of trial, this court cited the following example:

(a) The Transaction Schedules in respect of ELN transactions effected via Sit’s Account showed only two purchase transaction entries for ELNs with the same basket of underlying shares described as “3BASKET(41)”:

Transaction code	ELNOT0710-0000000109	ELNOT0710-0000000113
Settlement date	31/10/2007	1/11/2007
Transaction action	BUY	BUY
Trade date	17/10/2007	18/10/2007
RM	Kong	Kong
Client price	100.00	100.00
Notional currency/amount	US$1,000,000	US$1,000,000
Underlying share	3BASKET(41)	3BASKET(41)
ISIN	XS0327317086	XS0327529771

(b) In the Consolidated Statements for October and November 2007, there were corresponding transaction entries in respect of those two purchase transactions for ELNs linked to the basket of underlying shares described as “3BASKET(41)”:

Transaction date	17 Oct 07	18 Oct 07
Transaction reference	ELNOT0710-0000000109	ELNOT0710-0000000113
Settlement date	31 Oct 07
Transaction type	BUY
Security code	XS0327317086	XS0327529771
Description	Basket 358 + 366 + 857 (3-BASKET(41)) Strike: 0.0000 Maturity: 09 Nov 09 Issuer: BNP Paribas	Basket 358 + 366 + 857 (3-BASKET(41)) Strike: 0.0000 Maturity: 16 Nov 09 Issuer: BNP Paribas
Currency	USD	USD
Notional amount	1,000,000.00	1,000,000.00
Price	100.000
Settlement amount	1,000,020.00

(c)   The Confirmations dated 17 and 18 October 2007 showed that two CB Notes were purchased via Sit’s Account:

Issuer	BNP Paribas	BNP Paribas
Underlying	Basket (0358.HK + 0.368.HK + 0857.HK)	Basket (0358.HK + 0.368.HK + 0857.HK)
Terms and Conditions	As per Term-sheet attached	As per Term-sheet attached
Denomination per Note	USD50,000.00	USD50,000.00
Notional Amount	USD1,000.000.00	USD1,000.000.00
Buying Price	100.0000%	100.0000%
Trade Date	17 October 2007	18 October 2007
Settlement Date	31 October 2007	01 November 2007
Valuation Date	02 November 2009	02 November 2009
Maturity Date	09 November 2009	09 November 2009
Settlement Amount	USD1,000,020.00	USD1,000,020.00
-Consideration Amount	USD1,000,000.00	USD1,000,000.00
-Custodian Transaction Fee	USD20.00	USD20.00

(d) The term sheets attached to such Confirmations showed that the underlying shares of “Basket (0358.HK + 0.368.HK + 0857.HK)” were Jiangxi Copper Co Ltd, China Petroleum & Chemical-H and Petrochina Co Ltd.  They also stated the knock-in barrier price, reference price and trigger price were respectively 50%, 65% and 80% of the initial spot price of the shares, and the coupon was 28.30% and 26.20% for the 1^st and 2^nd transactions respectively.

(e) There was no dispute that these two purchased ELNs were the 4^th and 5^th ELNs.

(f) The Transcript of the T/C Recording of the telephone conversation between Sit and Kong at pages 1766-1770 of part F of the trial bundles recorded that Kong said “…… 咁我想再提議一張新的, 睇下你做唔做啫，…… 一張江西銅中石化同埋呢個中國石油 …… 咁呢個call呢就80% …… 即是80% knock out，就strike 65，咁嘅coupon呢28.3 …… 咁呢，然後有個保險線呢50%，…… 咁呢個呢就係兩年嘅callable accrue note ……”, and almost at the end of the conversation Sit said “Ok, 買住100萬先啦”.

(g) So from the available documentary evidence before the court (and even without the Lee Aff) the above T/C Recording plainly concerned the 4^th and 5^th ELNs, and the relevant telephone conversation obviously took place before the purchase transactions were effected via Sit’s Account.  The contextual evidence also showed it was consistent with the Numerical Code “20071017(1159)” on the aforesaid Transcript with the embedded date of 17 October 2007.

(h) For convenience, the above sample cross-reference exercise is described herein as “Cross-Reference Exercise”.

15. Mr Wong SC submitted the same/similar Cross‑Reference Exercise could be done and traced for the T/C Recordings in respect of the telephone conversations between Kong and Sit concerning the 10 ELNs and other trades recorded in the Transcribed Recordings.  Similar Cross-Reference Exercise could not be done where the T/C Recordings did not concern any effected trades, but for those T/C Recordings Mr Wong SC was more concerned with their contents than their relevant dates.

IV.  DISPUTED ISSUE

16. In light of the analysis in paragraph 14 above, Mr Lee SC conceded the dates of the Transcribed Recordings might be apparent from the Cross-Reference Exercise by comparing the contents of the Transcripts and other relevant documents that were already made available to Sit, but he complained DBS should have carried out such exercise and presented the analysis/information for Sit’s reference.  I note, however, the raw information from documents already disclosed during discovery was before the parties and this court, and as demonstrated by the analysis in paragraph 14 above there was no difficulty in carrying out the Cross-Reference Exercise at all. 

17. This led to the core question of what exactly was the dispute between the parties in respect of the dates of the Transcribed Recordings given that the T/C Recordings from the five CDs were already relevant and admissible evidence before the court without any challenge as to their authenticity and/or genuineness. 

18. In my view, such core question would admit three possible scenarios.  First, if there was a genuine dispute over the dates when the Transcribed Recordings were audio-recorded, this court would have to consider whether or not the Lee Aff should be allowed for resolving such dispute.  Secondly, if Sit had not yet carried out the Cross-Reference Exercise and/or he was unable to say as yet whether or not he had any genuine dispute over the dates put forward by DBS in respect of the Transcribed Recordings, the proper approach would be to ask for time to verify such dates against available information in order to ascertain whether or not there was any genuine dispute.  Thirdly, if Sit had no dispute over such dates, this court should be informed and the Lee Aff could be dispensed with. 

19. In my view, it would have been a pointless exercise in time and costs for this court and the parties to debate over the Lee Aff if in fact Sit actually had no dispute over the dates of the Transcribed Recordings.  It would have been equally pointless to entertain such debate if Sit did not even know whether or not he actually would dispute such dates (at least) pending verification.  This is in line with the underlying objectives in Order 1A rule 1 of the RHC to increase cost-effectiveness, to ensure fairness and to promote a sense of reasonable proportion and procedural economy.  It is also the duty of the parties and their legal representatives to assist the court to further the underlying objectives (see Order 1A rule 3 of the RHC).

20. When this court tried to ascertain the true nature/substance of Sit’s dispute (if any) in respect of the dates of the Transcribed Recordings, Mr Lee SC submitted DBS obviously needed the evidence in the Lee Aff otherwise they would not have applied to produce the same, and at this late stage DBS should not be allowed to introduce the Lee Aff into evidence even if other documentary evidence might well tie up with the gist of the Transcribed Recordings to illuminate whether the T/C Recordings took place before or after the corresponding investment transactions.  Mr Lee SC submitted that Sit would not admit (and DBS had to prove) such dates since Sit could not be expected to agree the dates put forward by DBS, and if in the absence of the Lee Aff DBS had to prove such dates in a long-handed way by means of the Cross‑Reference Exercise, then so be it as “[the] court is not concerned with how a particular party presents its case”. 

21. Mr Wong SC had the right of it when he submitted that even though Sit would not admit the dates put forward by DBS, Sit had no positive case to suggest the dates of the Transcribed Recordings were other than those put forward by DBS and/or embedded in the Numerical Codes as explained in the Lee Aff.  Mr Lee SC retorted that Sit had no duty to assist DBS in proving their case, and it was up to DBS to prove their allegations.

22. In my view, this is a singularly adversarial approach decried by the Civil Justice Reform, especially when Sit knew the Transcribed Recordings were already relevant and admissible evidence before the court and the sole issue was in relation to their dates. 

23. On the 6^th day of trial, after hearing arguments by Mr Wong SC and Mr Lee SC, I allowed DBS to produce the Lee Aff.  I also decided that Sit should not start to give oral evidence immediately, and at 12:11 pm I adjourned the hearing to the following day so as to give Sit’s legal representatives an opportunity to carry out the Cross‑Reference Exercise in relation to the dates embedded in the Numerical Codes of the Transcripts for the Transcribed Recordings (in case they wished to carry out such exercise and had not yet done so) and to have access to Sit to take instructions if they wished.  I also reserved my reasons for decision.

24. As it turned out, Sit’s insistence on the stance in paragraph 20 above was not understood.  It transpired on the 9^th day of trial at the tail-end of Sit’s oral testimony when this court asked Sit whether (after having listened to the Transcribed Recordings and read the corresponding Transcripts) he had any dispute over the dates put forward by DBS, Sit confirmed he had no dispute over such dates for the Transcribed Recordings concerning the 10 ELNs or as to the month/year put forward by DBS for each of the Transcribed Recording that concerned other products/issues.  Indeed, Sit confessed the Transcribed Recordings and corresponding Transcripts helped to jog his memory and assisted him in  recalling conversations/events. 

25. Such testimony by Sit suggested his earlier stance of resisting the Lee Aff (the sole purpose of which was to explain the dates of the Transcribed Recordings put forward by DBS) was quite unnecessary.  He could have asked for time to ascertain whether he had a genuine dispute over such dates (and even that might have been unnecessary if he actually had no dispute).  Be that as it may, this quite clearly demonstrated no prejudice would be caused to Sit by admitting the Lee Aff.

26. Mr Lee SC next complained it was unclear “whether there were only these taped conversations between [Sit] and staff of the bank”, ie Sit was worried whether DBS might have omitted to include or reproduce every one of the telephone conversations between Kong and Sit in the disclosed/discovered Recordings/Transcripts, especially when there would have been non-recorded conversations between Sit and Kong over mobile telephones and other landline telephones. 

27. Plainly, such complaint was irrelevant and extraneous to the question of the dates of the Transcribed Recordings addressed by the Lee Aff.  This was a wholly separate issue which Sit might raise (if he could) at the trial.  But Mr Wong SC reminded that by a summons filed on 24 November 2011 Sit sought specific discovery of the Recordings/ Transcripts of all telephone conversations between Sit and Kong in respect of Sit’s Account, and DBS filed Yim’s affirmation dated 10 February 2012 to explain they had disclosed/discovered the T/C Recordings that could be retrieved by them. The summons was accordingly dismissed on 23 April 2012.

V.  ORDER 38 RULE 2 OF THE RHC

28. Mr Lee SC rested his primary objection on Order 38 rule 2 of the RHC which provided as follows:

“(1) The Court may, at or before the trial of an action begun by writ, order that the affidavit of any witness may be read at trial if in the circumstances of the case it thinks it reasonable so to order.

(2) An order under paragraph (1) may be made on such terms as to the filing and giving of copies of the affidavits and as to the production of the deponents for cross-examination as the Court thinks fit, subject to any such terms and to any subsequent order of the Court, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose.”

Mr Lee SC suggested that leave of the court was required to produce the Lee Aff, and in exercising its discretion whether or not to grant such leave, the court should have regard to all circumstances including the lateness of the application and the fact that the dates put forward by DBS covered all of the Transcribed Recordings and not just the 12 Audio‑Recordings.

29. Mr Wong SC did not rely on Order 38 rule 2 of the RHC, but submitted that if such statutory provision was applicable, this court should still admit the Lee Aff.  He pointed out the Cross-Reference Exercise done by this court in paragraph 14 above clearly showed the relevant dates of the Transcribed Recordings could be cross-checked against the raw or primary documents, and the Lee Aff would provide the foundation/basis for so utilising the raw or primary evidence, ie how the audio-recordings were made, how they were retrieved and how the dates were obtained. 

30. Mr Wong SC accepted that the production of the Lee Aff would not preclude Sit from making submissions at the end of the day as to its weight and/or correctness upon further cross-check by way of, say, the Cross-Reference Exercise.  Mr Wong SC also reminded that Sit was unable to offer any positive case as to what exactly was his dispute over the dates/timing of the T/C Recordings put forward by DBS. 

31. I am prepared to proceed on the basis of Mr Lee SC’s argument that Order 38 rule 2 of the RHC was applicable. On such basis, I have no hesitation in agreeing with Mr Wong SC that leave should be granted for DBS to produce the Lee Aff at the trial of this action. There was no dispute that the Recordings/Transcripts were discovered, relevant and admissible, and the sole issue was their dates. Given that no positive case was put forward by Sit to challenge the dates, that the Lee Aff essentially explained the mechanical system by which the dates were elicited (and much of that had been previously canvassed in Yim’s affirmation that was already known to Sit), that even the cursory Cross-Reference Exercise in paragraph 14 above showed correlation among the Transcribed Recordings, the date put forward by DBS and the ELN in question, I see no reason not to admit the affirmation evidence in the Lee Aff that explained how the dates put forward by DBS came about. Further, Sit was unable to suggest any prejudice that he might suffer by production of the Lee Aff despite the lateness. Indeed, Sit’s evidence confirmed there was no such prejudice and no real dispute as to the dates put forward by DBS.

32. On such basis, there is no need to turn to Section 20 of the Ordinance. However, for completeness, I will do so since Mr Wong SC also relied on such provision.

VI.  SECTION 20 OF THE ORDINANCE

33. Section 20 of the Ordinance provided as follows:

“(1) Subject to this section, a copy of any entry or matter recorded in a banker’s record shall, on its production without further proof, be admitted in any proceedings as prima facie evidence of the matters, transactions and accounts therein recorded if –

(a) it is proved –

(i) that such entry was made or matter recorded in the ordinary course of business; and

(ii) that such record is in the custody or control of the bank; and

(b) except in the case of a copy made by any photographic process and subject to subsection (3), it is proved by some person who has examined the copy with the original entry, that the copy has been examined with the original entry and is correct.

(2) A bank or officer of a bank shall not, in any proceedings other than proceedings instituted by or against the bank, be compelled to produce any banker’s record the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions or accounts therein recorded, except –

(a) in civil proceedings, by order of a judge made for special cause;

(b) in criminal proceedings, by order of the court of trial.

(3) In the case of a banker’s record kept by means of a computer, it shall not be necessary to prove the matters referred to in subsection (1)(b) in relation to a document produced by the computer which is tendered in evidence under this section as a copy of a matter recorded therein if (subject, in the case of civil proceedings, to any rules of court made under section 54 of the High Court Ordinance (Cap 4) with respect of this subsection) it is proved –

(a) that the document so produced under the direction of a person having practical knowledge of and experience in the use of computers as a means of storing, processing or retrieving information;

(b) that during the period when the computer was used for the purpose of keeping such record, appropriate measures were in force for preventing the unauthorized interference with the computer; and

(c) that during that period, and at the time that the document was produced by the computer, the computer was operating properly or, if not, that any respect in which it was not operating properly or was out of operation was not such as to affect the production of the document or the accuracy of its contents,

and for the purposes of this subsection “computer” has the same meaning as in section 22A.

(4) In any proceedings, the matters referred to in subsection 1(a) and (b) and 3(a), (b) and (c) in relation to a banker’s record may be proved, orally or by affidavit, by any officer of the bank, and any such affidavit shall, on its production without further proof, be admitted in evidence and may include an explanation of the contents of the copy of an entry or matter recorded in such banker’s record which is tendered in evidence or any abbreviations, symbols or other markings appearing in such copy that may be relevant in the proceedings, and a description of the banker’s record, its nature and use, and the procedures followed in keeping it; and for the purposes of this subsection it shall be sufficient for a matter referred to in subsection 1(a)(a)(i) or (3)(c) to be stated in an affidavit to the best of the knowledge and belief of the person making the affidavit.

……”

34. Mr Lee SC submitted that DBS had not brought the Lee Aff within section 20(1) of the Ordinance.  For the Transcribed Recordings up to 9 November 2007, Mr Lee SC argued that DBS had to comply with section 20(1) of the Ordinance by calling a person to prove he had heard, examined and compared the copy audio-files contained in the five CDs with the original audio‑recordings for the Transcribed Recordings stored in data cartridges and satisfied himself/herself they were correct copies.  Mr Lee SC submitted such evidence was wholly lacking in the Lee Aff.

35. Under section 20(2) of the Ordinance, a bank or its officer would not have to appear as witness to prove the matters, transactions or accounts recorded in any banker’s record except in proceedings commenced by or against the bank.  Mr Lee SC submitted that since the present action was commenced by DBS, it must be a relevant circumstance to take into account in determining whether the court should not be more strict in allowing a late affirmation to be used.

36. Mr Lee SC also drew attention to section 20(3) of the Ordinance and said that for banker’s record kept by means of a computer (which would apply to the Transcribed Recordings made on or after 10 November 2007), even though it was not necessary for someone to examine and compare the copy audio-files with the original audio-recording and to satisfy himself/herself that the copy was correct, the other conditions in section 20(3)(a)-(c) of the Ordinance would apply. 

37. Mr Lee SC submitted the above statutory requirements were important to ensure the court could receive and rely on a copy of the banker’s record with certain confidence, and if such requirements were not complied with then the affirmation could not be admitted as evidence under section 20 of the Ordinance. 

38. Mr Lee SC contended that the Lee Aff failed to satisfy those requirements since DBS did not adduce direct or hearsay evidence to prove that “some person …… has examined the copy with the original entry” and “that the copy has been examined with the original entry and is correct” for the Transcribed Recordings before 10 November 2007, and DBS failed to adduce direct or hearsay evidence to satisfy the requirements in section 20(3)(a)-(c) of the Ordinance for the Transcribed Recordings on or after 10 November 2007 that were stored in a computer, ie the document was produced under the direction of someone who had practical knowledge of and experience in the use of computers as a means of storing, processing or retrieving information, that appropriate measures to prevent unauthorised interference with the computer were in force, and that the computer was operating properly. 

39. Mr Lee SC reminded that section 20(4) of the Ordinance provided that “[in] any proceedings, the matters referred to in subsection (1)(a) and (b) and (3)(a), (b) and (c) in relation to a banker’s record may be proved …… by affidavit, by any officer of the bank and any such affidavit …… on its production without further proof ……”, and it was on such basis that the affidavit might “…… include an explanation of the contents of the copy of an entry or matter recorded in such banker’s record which is tendered in evidence or any abbreviations, symbols or other markings appearing in such copy that may be relevant in the proceedings, and a description of the banker's record, its nature and use, and the procedures followed in keeping it ……”

40. Mr Lee SC submitted that section 20(4) of the Ordinance did not displace the requirements in section 20(1)(b) or section 20(3)(a)-(c).  Any reliance by DBS on section 20(4) of the Ordinance would still require compliance with these requirements, but the Lee Aff failed to satisfy such requirements, hence Mr Lee SC suggested that this court should not allow it to be used in the present action.

41. I agree with Mr Lee SC that sections 20(1) and 20(3) of the Ordinance specified the requirements for production of copy banker’s records. But here we were not concerned with production of copy banker’s records being the Transcribed Recordings. Those were documents discovered and disclosed by DBS and there was no objection as to authenticity. They were relevant and admissible evidence already placed before the court. As Mr Wong SC submitted, the question before the court was whether the Lee Aff should be admitted as being relevant to the narrow issue as to the dates (and not to the contents) when the T/C Recordings were made, and the issue of the weight to be attached would come later in the course of the trial (and Mr Lee SC would be free to make submissions on the issue of weight in closing submissions) if the Lee Aff was admitted into evidence.

42. Mr Wong SC submitted that since in the present case there was no question as to the authenticity and/or genuineness of the Transcribed Recordings, so in respect of section 20(4) of the Ordinance the only matter that the court was concerned with was simply the dates of the Transcribed Recordings.  Lee provided an explanation of such matter in the Lee Aff, basically by clarifying how the T/C Recordings were made, how the dates could be retrieved from the tape machines, and how the dates could be seen from the computer record of the digital audio system.  Mr Wong SC reminded that under section 20(4) of the Ordinance such an affidavit was admissible by production without further proof, and no leave of the court was required. 

43. In my view, in light of the fact that the Transcribed Recordings were already relevant and admissible evidence before the court, I accept Mr Wong SC’s arguments which I find persuasive.  But even if Mr Lee SC’s insistence on strict compliance with the requirements in sections 20(1)(a)-(b) and 20(3)(a)-(c) of the Ordinance was correct and the Lee Aff failed to satisfy such requirements so that DBS could not rely on section 20 of the Ordinance, the fact that the Transcribed Recordings were already admissible evidence before the court and that section 20(4) of the Ordinance contemplated explanations  of entries in the record or procedures that were followed for keeping the banker’s record could be tendered in evidence by affidavit would be and were weighty considerations in the exercise of discretion by the court in admitting the Lee Aff under Order 38 rule 2 of the RHC.  Still further, I reiterate that no prejudice to Sit could be discerned in admitting the Lee Aff into evidence.

VII.  COSTS

44. On the 6^th day of the trial, I also reserved the question of costs in respect of the arguments over the Lee Aff.  I grant a costs order nisi (a) DBS do pay Sit costs in respect of DBS’ application to produce and use the Lee Aff at trial and (b) Sit do pay DBS costs occasioned by Sit’s opposition to such application to be taxed if not agreed with certificate for two counsel.