CHEUNG HING v. WAH FUNG FOREST RESOURCES LTD

HCMP 3/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3 OF 2016

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D E C I S I O N

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1.  This is the second CMC in this action fixed today on the basis that the witness statements were expected to be in place well before this date. It transpired that the defendant has failed to comply with the directions for the exchange of witness statements and has even by today neither filed and exchanged its witness statements nor taken out a summons for extension of time. This conduct, I regret to say, is symptomatic of a pattern on the part of the defendant and the persons controlling it at least in this action.

2.  The defendant had, last year, delayed many months in filing its defence.  The statement of claim was filed on 25 April 2016, but the time for the filing of defence was allowed to expire and a draft defence was only put forward on 10 September 2016 in the face of an application for judgment by the plaintiff.

3.  The defendant then delayed in the filing of its list of documents after the close of pleadings, without order, under the High Court Rules.  As a result, I had to make an order on 20 January 2017 for the filing and service of the defendant’s list of documents which it had to do by 10 February 2017.

4.  The defendant failed again to comply with the court’s order and the list of documents was not filed until 20 April 2017, consisting, as far as I can see, only of documents lodged in the Companies Registry, with the exception of a letter from the company secretary.

5.  The witness statements under my directions were to be exchanged on 20 April 2017.  There was, apparently, a consensual extension of time for the defendant to 4 May 2017.  But even then no witness statement was exchanged by the defendant.

6.  The defendant has asserted today that the delay has been due to “difficulties with obtaining instructions with some of the directors who are based overseas” and has asked for time until 16 June 2017 when it “anticipates that it will be in a position to exchange its witness statement(s)”. When asked who the intended witnesses would be, however, counsel was initially not in a position to inform the court except to say that Mr Wong Chor‑cheung is likely to be a witness.  After time was given for the defendant’s solicitor to take instructions from Mr Wong Chor‑cheung, the court was informed that the defendant might also wish to call Mr Chen Shulong, the person referred to at paragraph 4(i) of the statement of claim, who, I was informed, is based in New Zealand, and an individual whose name the defendant’s legal representatives do not know, who is connected in some capacity to Success Consultants Limited, referred to in paragraph 4(v) of the statement of claim and who is apparently based in Mainland China.

7.  When asked what difficulties have been encountered in the attempt, if any, to contact these individuals and obtain their proposed evidence, and what steps and progress had been made, the court was informed that there was no available information.

8.  When asked for the basis for asserting that the defendant anticipates it will be in a position to exchange witness statements on 16 June 2017, the court was again informed that there was no information available.

9.  In these circumstances, I do not see any justification for extending time to 16 June 2017.  I will give the defendant a chance to put in the witness statements it wishes to rely on on an unless order basis.  I make an order that unless the defendant files and exchanges its witness statements by 4 pm on 1 June 2017, it shall be debarred from filing and relying on any witness statement in this action.

10.  I direct that the plaintiff’s witness statement be put in a sealed envelope and is not to be inspected until after the defendant has filed and exchanged its witness statements.

11.  I will adjourn the CMC to 7 June, 9:30 am.

12.  By 6 June at 1 pm, the parties shall file and serve estimates of the following time:

(a) time for opening submissions;

(b) time for examination‑in‑chief;

(c) time for cross‑examination;

(d) time for final submissions; and

(e) the above total time.

13.  I will award costs to the plaintiff in the sum of $800 to be paid forthwith.