CCMJ v. SSM formerly known as SKL

FCMP 67 /2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010

----------------------------

__________

-------------------------

   D E C I S I O N

  (Filing of Affirmation)

-------------------------

Introduction

1.  This is the Applicant’s Summons dated 27 June 2014 seeking leave of this Court for the filing of an Affirmation of his mother Madam Wong xx (“Madam Wong’s Affirmation”) dated 8 June 2014.  The Applicant filed his 25^th Affirmation on the same day in support of this Summons.

2. The Summons are drafted in simple terms as follows :-

“(1) Leave be granted to the Applicant to file the affirmation of Ms.Wong xx, the Applicant’s mother, and its exhibits as per the attached marked “A” within 3 days from the date of the Order;

and

(2) Costs be provided for.”

3. Counsel for the Applicant Mr. Jeremy Chan, only upon this Court’s enquiry, confirmed in his oral submissions that directions also ought to have been sought in the terms of the Summons that the deponent Madam Wong should not be required to attend Court to give evidence and subject to cross-examination.  This Court raised such enquiry because this was stated in paragraphs 11 and 12 of the Applicant’s 25^th Affirmation.

4. Counsel for the Respondent Mr Kevin Li noted the further directions sought and rightly confirmed that no Affirmation in opposition need to be filed as the Summons related to procedural matters rather than any factual disputes.

Background

5. By way of background, the trial of the Respondent’s application for maintenance for the child in question started on 12 June 2014 which was adjourned part heard to today at 2:30 p.m.  The present Summons was only issued after the 1^st day of trial although Madam Wong’s Affirmation was affirmed 4 days before the trial on 8 June 2014.  No reasons was given by the Applicant in his supporting Affirmation as to why the present application could not have been taken out earlier but had to wait until the trial had commenced.  This is certainly not commendable  in light of the objectives under the Civil Justice Reform regime; in particular, when the Applicant had all along been represented by reputable law firms with extensive experience in matrimonial practice. 

6. According to the records, late application had happened 3 years ago back on 8 November 2011 (which is 24 hours before the 6-day substantive trial for custody was due to commence on 9 November 2011) when the Applicant had, without obtaining any extension of time to do so, filed into Court his 5^th Affirmation (consists of 75 pages with 254 paragraphs) with exhibits “CCMJ-38” to “CCMJ-119” on 19 October 2011when he was ordered to do so within 36 days of the Order dated 19 October 2010 (that is to say, the Applicant was 11 months late) (see paragraph 13 of this Court’s earlier Reasons for Decision dated 5 October 2012). In addition, without the leave of the Court, the Applicant filed his 6^th Affirmation with exhibits “CCMJ-120” to “CCMJ-122”, and also Affirmations from 4 other persons, and then sought retrospective leave for using those affirmations for trial.  All these “new” Affirmations and his 11-month belated 5^th Affirmation and exhibits added up to over 200 pages if not more.  This had resulted in the scheduled 6-day trial which was due to start on the following day had to be re-fixed for a 14-day trial in February 2012.  Eventually the trial took up to 16 days.

7. Probably the reason for the present Summons to be issued is that the Applicant saw fit to do so when his “11^th hour” application for subpoena of the officer of Bank of China was refused and; still further, for the ex tempore reasons given by this Court for the refusal.  In any event, the Applicant’s Summons was listed for hearing at the same time as the resumed part heard trial at 2:30 p.m.

8. This Court was never informed of the existence of Madam Wong’s Affirmation prior to the trial commenced (that is, 12 June 2014).  It was then noted by this Court that there had been exchange of correspondence between the parties’ lawyers as to the production of Madam Wong’s affirmation as evidence without her giving evidence and subject to cross-examination in court.  Apparently no consensus was reached between the parties.

9. One day before the present trial on Respondent’s claim for maintenance of the child in question (that is, on 11 June 2014), the Applicant applied for leave to issue a subpoena to an officer of the Bank of China whose evidence related to certain information she received from the Applicant himself over funds held in the Applicant’s account.  The application for leave to issue such subpoena was refused by this Court.  Prior to the trial commenced (that is, on 12 June 2014), Counsel Mr. Chan renewed the application made on the day before for the same subpoena to be issued.  This renewed application was refused.  Counsel Mr. Chan immediately sought leave to appeal against the first and second refusal although both of which are case management decisions of the Court.  Brief ex tempore reasons for refusal were delivered by this Court after the lunch adjournment.  The Applicant had now confirmed in his 25^th Affirmation that he had taken the matter further to the Court of Appeal on 26 June 2014 under HCMP No.1572 of 2014.

10. The part heard trial then commenced in the afternoon of 12 June 2014 after the ex tempore reasons were given.

Madam Wong’s Affirmation

11. In the Affirmation, Madam Wong deposed to her having had transferred HK$32 million from her bank account to the Applicant’s bank account to hold on trust for her in 2002/2003.  Such sum together with interest now totalling around HK$37 million odd dollars were, upon her request, transferred back to her recently on 29 January 2014 (i.e. about 5 odd months ago).  The reason put forward for such ‘transfer back’ in January this year was to avoid any possible confusion after she learnt from his son (i.e. the Applicant) about the Respondent’s application for the child’s maintenance started in October 2013 (see paragraph 9 of Madam Wong’s Affirmation).  Bank statements of her account were produced only for the months of April and December 2013 but not for 2002/2003 when she did the ‘transfer out’ to the Applicant.  Madam Wong deposed not being able to retrieve those bank statements for the ‘transfer out’ due to the lapse of time of more than 10 years.  There was no other written document either for such ‘transfer out’ (see paragraph 6 of Madam Wong’s Affirmation).

12. Madam Wong also deposed, inter alia, her long standing health problem (that is, diabetes and hypertension), her diagnosed significant coronary artery disease, her frequent angina and shortness of breath.  She was advised by doctor that she is not fit to attend any events which may induce emotional stress for health safety reasons.  She produced as an exhibit a copy of the medical report issued by Dr. Li Siu Lung, Steven, Consultant Cardiologist, Head, Department of Internal Medicine of Union Hospital Polyclinic dated 26 April 2014.  

The Applicant’s position

13. Counsel Mr. Jeremy Chan submitted Madam Wong’s Affirmation was in existence a while ago and had brought to the Respondent’s lawyers’ notice well before the trial commenced.  This is not a lengthy Affirmation and touched upon one issue only. There is no prejudice to the Respondent if the Affirmation was allowed to be filed.  Counsel Mr. Jeremy Chan rightly conceded that it would be a matter of weight to be attached to such Affirmation if Madam Wong could not attend Court to give evidence and be cross examined. 

14. Moreover, Mr. Jeremy Chan submitted that the Respondent is not positively challenging the Applicant’s case of the HK$32 million had been held on trust by the Applicant for her mother (i.e. Madam Wong).

The Respondent’s objection

15. Counsel Mr. Kevin Li took no issue on the time for issuing the Summons.  Though agreeing that no positive challenge was made, the contention focuses upon unfairness and prejudice to the Respondent if she would not be able to test Madam Wong’s credentials through cross-examination.  The sum of HK$32 million is substantial.  A submission was then made by Counsel Mr. Kevin Li that video link evidence might be considered by the Court as an option. 

The legal position

16. Under Order 38 rule 2 of the Rules of the District Court, Cap.336, which provides:-

“(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 the 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 but, 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.

(3) In any case or matter begun by originating summons, originating motion or petition, and on any application made by summons or motion, evidence may be given by affidavit unless in the case of any cause, matter or application any provision of these rules otherwise provides or the Court otherwise directs, but the Court may, on the application of any party, order the attendance for cross-examination of the person making any such affidavit, and where, after such an order has been made, the person in question does not attend, his affidavit shall not be used as evidence without the leave of the Court.”

17. As said, Counsel Mr. Jeremy Chan had orally confirmed that, although not stated in the written terms of the Summons, an order is also sought for Madam Wong not attending trial and subject to cross- examination under Order 38 rule 2(2).  On the other hand, as confirmed by Counsel Mr. Kevin Li, the Respondent would apply to cross examine Madam Wong under Order 38 rule 2(3) if her Affirmation was allowed to be filed by the Court.

Any unfairness or prejudicial effect?

18. The first question to look at is whether there is any unfairness or prejudicial effect to either party if Madam Wong’s Affirmation is allowed or disallowed to be filed. 

19. The crux of Madam Wong’s Affirmation is to refer to a trust arrangement which had existed between her and the Applicant involving a sum of about HK$32 million which sum at one stage was kept under the Applicant’s bank account.  Since the Respondent is not positively challenging such case of trust, it follows that such piece of evidence tended towards explaining the Applicant’s financial means and resources to meet the child’s expenses claim.  This is a factor which the Court must have regard to when deciding claims under the provisions of Section 10(2) of the Guardianship of Minors Ordinance, Cap.13.

20. To disallow Madam Wong’s Affirmation to be filed will deprive the Applicant’s right to adduce evidence on his financial means and resources.  The probative value of such piece of evidence would, however, have to be tested through cross-examination of Madam Wong or would have to be separately considered if Madam Wong was allowed not to attend trial and be subject to cross-examination.

21. On the other hand, any prejudice exposed to the Respondent for not having the chance to test the veracity of Madam Wong’s evidence by affidavit or her credentials through cross-examination could, as Counsel Mr. Jeremy Chan fairly conceded, have been canvassed by the Court when deciding what weight to be attached to rather than affecting the admissibility of such Affirmation evidence. 

22. Accordingly, I decided to allow Madam Wong’s Affirmation dated 8 June 2014 to be filed within 7 days from the date of this Decision.

Discussion

23. Now I will turn to the question of whether Madam Wong should attend the trial and be cross examined on her Affirmation.  As said, this was not stated anywhere in the terms of the Applicant’s Summons dated 27 June 2014 but was only orally confirmed by Mr. Jeremy Chan in his  submission.  I will approach such question on a 3-tier process, namely, (a) whether there are good and sufficient reasons to exercise the right to cross examine; and (b) whether cross-examination should be granted in the interests of justice; and (c) are there any exceptional circumstances not to allow cross-examination.

Good and sufficient reasons

24. Throughout the hearing of the Summons, I have not been assisted by both Counsels on any case law or authorities.  There are, however, series of cases on the topic from 1984 onwards.   

25. To start with, the principles governing the exercise of the Court’s discretion to order cross-examination of witnesses on their affidavit evidence can be found in the judgment of Fuad JA in Wendy Wenta Seng Yuen –v- Philip Pak-yiu Yuen [1984] HKLR 431 at 436 E-H :

“As regards affidavits in general, there will be cases where the interest of justice dictate that a deponent should be subject to cross-examination. For example, where the motives of directors in exercising their powers is in issue, as in Smith and Fawcett [1942] 1 Ch 304. In other cases, in my judgment, the true rule must be that the court has an unfettered discretion to permit cross-examination on an affidavit but the applicant is not entitled to this right as of course. He has to establish that in all the circumstances of the case there is a good and sufficient reason for the application. He will not find this difficult where the evidence on the affidavits will result in what I might call a final order. He will find it more difficult in interlocutory matters, perhaps, for, as the judge below had in mind, great delay and expense might be entailed. It seems to me that what is essential for the applicant to show is that the proposed cross-examination might be productive of a useful result at the stage that the application is made (my emphasis). If no reason can be suggested for supposing that the cross-examination will then be helpful, the application will be refused in the discretion of the court, indeed, in certain circumstances it might be regarded as oppressive and,  as such, an abuse of the process of the court.”

26. In the later case of Grand Empire Holdings Ltd –v- Marco International (HK) Ltd, HCA No.14891 of 1999, where Burrell J had said :

“The Court has an unfettered discretion to order cross-examination and that discretion should be exercised in favour of the party seeking it when the court is satisfied that it is necessary in the interest of justice. In other words, if there is a real risk that justice will not be done if  cross-examination is not allowed, then leave should be granted.”

27. As regards what is “good and sufficient reason”, the learned Deputy Judge To (as he then was) in the case of Andrew Wyles Walters –v- Malahon Credit Company Limited, HCSD 24 of 2001 had said :

“11. What constitutes a good and sufficient reason must be examined in the light of the nature of the proceedings in which the affirmation is used. As the Applicant is seeking to set aside the statutory demand, his burden is to put forward his defence with sufficient clarity and to adduce sufficiently precise factual evidence to satisfy the court that he has a bona fide dispute on substantial grounds. As I have already indicated, he does not have to prove that the debt is invalid and usually the court will not endeavour to determine the validity or otherwise of the debt because it is unnecessary. In this sense, this court is not required to make a final order. In this as well as in many other similar proceedings in chambers, the court is faced with affidavits filed by the parties, which are usually contradictory. It is never the function of the court to conduct a mini trial on affidavits or to compare affidavits and make  finding of fact……..”

28. With these cases in mind, it poses the first question “whether cross-examination of Madam Wong’s evidence on affidavit will result in a ‘final order’?  A ‘final order’ is one which will finally dispose of the controversy between the parties (my emphasis) (see Shell Hong Kong Ltd –v- Yeung Wai Man Kiu Yip Co. Ltd & Anor, FACV 1 of 2003).

29. In my decision, cross-examination of Madam Wong’s evidence on affidavit does not result in any form of ‘final order’ disposing of the controversy between the parties.  The controversy in this case is still there no matter Madam Wong’s evidence after cross-examination stands or falls, namely, what is the required amount of maintenance for the child in question? 

30. The second question which calls for consideration is the nature of the proceedings in which Madam Wong’s Affirmation is to be used.  Plainly speaking, Madam Wong’s evidence was used by the Applicant to support his case that the sum of HK$37 million odd dollars once in his bank account was in fact held on trust by him for his mother (i.e. Madam Wong).  The Applicant is now saying, disregarding the trust money of HK$37 million odd dollars, his financial means and resources to provide for the child in question, financial or otherwise, is well below what the Respondent is now seeking against him. 

31. Applying Wendy Wenta Seng Yuen, supra, it needs to be shown that, when the proposed cross-examination was made, it might be productive of a useful result.  Since the stand or fall of the ‘Trust” argument have an impact over the financial means and resources of the Applicant in meeting the financial needs of the child, I am prepared to find in favour of the Respondent that there are “good and sufficient reasons” for the Respondent to cross-examine Madam Wong.  Such cross- examination might produce a useful result although it is noted not to be in any form of final order disposing of the controversies between the parties.

Cross examination in the interests of justice ?

32. It is for the Respondent who is seeking cross-examination to satisfy the Court that such a course is necessary in the interests of justice (see Grand Empire Holdings Ltd supra). 

33. Since the Respondent is not positively challenging the Applicant’s case of the “Trust”, it appears there will be no real risk that justice will not be done if cross-examination on Madam Wong is not allowed.   

34. Taking all these into full consideration, with particular reference to the aims and objectives of the Civil Justice Reform regime under Order 1A rule 1 of the Rules of the District Court, Cap.336H, the discretion on cross-examination upon affidavit evidence of Madam Wong is exercised in favour of the Respondent.

Any exceptional circumstances ?

35. Although I have found in the Respondent’s favour on cross-examination of Madam Wong on her affidavit evidence, I believe there are exceptional circumstances for this Court to direct Madam Wong need not attend the trial and shall not be subject to cross-examination under Order 38 rule 2(2) of the Rules of the District Court, Cap.336H.

36. Madam Wong is now 80 years of age. There is medical evidence before the Court about her health problems which suggested that she is unfit to attend to events which might induce emotional stress and unfit to be in court proceedings until her coronary heart disease is stabilised.  No evidence to the contrary was provided by the Respondent nor any issue taken by Respondent’s Counsel on Madam Wong’s age and health conditions.

37. This Court accepts the health condition of Madam Wong and recommendation provided by Dr. Li Siu Lung in his Note dated 26 April 2014 (that is, exhibit no.WSY 1-3 under Madam Wong’s Affirmation).  Given the age and condition of Madam Wong, it is fair to say there is a high degree of probability that there will be emotional stress for Madam Wong if she is going to testify in Court or by video link and subject to cross-examination. 

Conclusion

38. For the reasons above, I now grant the following Orders :-

(a) Leave be granted for the Applicant to file and serve the Affirmation  of Wong xx (“Madam Wong”) dated 8 June 2014 within 7 days from  the date of this Decision;

(b) Madam Wong does not need to attend the trial of these proceedings and not to be subject to cross-examination;

(c) Costs of the Applicant’s Summons dated 27 June 2014 be in the cause;

(d) The Respondent’s own costs be taxed in accordance with Legal  Aid Regulations.

39. I also grant Certificate for Counsel.

40. This is a costs order nisi which will become absolute unless any party applies to vary the same within 14 days.