CHAN YAN CHEONG, THE LAWFUL ATTORNEY OF CHAN YUEN CHOW, THE EXECUTOR UNDER THE WILL OF HO KAM KIU, DECEASED v. CHAN YAN SHUM

DCCJ 519/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 519 OF 2013

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DECISION

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The Application

1.  Subsequent to two summones (“the 1^st and 2^nd summonses”) taken out by the defendant on 17 and 18 June 2014 (which were heard on 23 June 2014, 1^st day of trial), for leave to adduce (i) the supplementary witness statement of Madam Lo Shui Lin (“Madam Lo”), wife of the defendant, and (ii) two psychiatric expert reports, the defendant took out two additional summonses (“the 3^rd and 4^th summonses”) today, on the 2^nd day of trial, to seek leave to (i) amend the Defence and (ii) adduce the 2^nd supplementary witness statement of Madam Lo.  Decision of the 1^st and 2^nd  summonses was given on 23 June 2014 (“the Decision”). The 1^st summons was dismissed, leave to adduce Madam Lo’s supplementary witness statement was refused. For the 2^nd summons, leave was granted, inter alia, to the defendant (i) to adduce two psychiatric expert reports; and (ii) to call the makers to give oral evidence at trial.

2.  Mr Yuen, counsel for the defendant submitted the basis of the 3^rd summons was premised on paragraph 23 of the Decision:

“…Furthermore, paragraph 7(2) of the Defence did not state Madam Lo was present at the family meeting, I fail to see Madam Lo could assist the defendant in giving evidence of the discussions or events leading to the signing of the Note.”

3.  Mr Yuen submitted, Madam Lo has expressly stated her presence in the family meeting in paragraph 11 of her witness statement dated 10^th February 2014. To avoid uncertainty, the defendant seeks leave to amend paragraph 7(2) the Defence by adding Madam Lo’s presence in the family meeting (ie the 3^rd summons).  Mr Yuen further applied for leave to adduce the 2^nd supplementary witness statement of Madam Lo (ie the 4^th summons).

The plaintiff’s opposition

4.  Mr Ng, counsel for the plaintiff, opposed to the 3^rd and 4^th summonses.  Not only was it late applications, the defendant failed to explain the reasons for taking out such applications during trial.  

5.  Mr Ng further submitted, the evidence of the defendant did not tally with the amendment of the Defence.  In paragraph 7(2) of the Defence, the defendant pleaded the representations were made by Chan Yan Chow and Chan Yan Wah to the defendant; whereas in Madam Lo’s 2^nd supplementary witness statement, she stated the representations were made by Chan Yan Tong. In the defendant’s witness statement (despite the fact that it is inadmissible pursuant to Order 38 rule 2A(6), Rules of the District Court), the defendant said it was Chan Yan Chow who had made the representations.

6.  Mr Ng envisaged, if leave be granted, further applications for leave to seek further and better particulars on the Defence and to adduce supplementary witness statement from the plaintiff is imminent.

Analysis

Late Application

7.  Relevant legal principles in considering late applications are well established. In Hong Kong Changyi Real Estate Development Limited v Neo-China (Group) Infrastructure Investment Limited HCA 1576 of 2011 (25 February 2014, unreported), Mimmie Chan J has succinctly summarized those in paragraph 2:-

“Nearly 5 years after the implementation of the Civil Justice Reform, parties should be under no doubt by now that the courts will have no hesitation now to reject a late application, made when trial is imminent, for either amendment of pleadings, discovery or the filing of witness statements, which application has the effect of disrupting the preparation for trial with the risk of milestone dates such as a pretrial review or the trial dates themselves being affected. Delay itself is a ground justifying refusal of leave, since delay of a trial is prejudice to a party, who has every right to expect that a trial fixed months ahead with due notice to the parties can proceed without disruption and time and costs being wasted. I can add very little to what has already been summarized and set out in Kinetics Medical Health Group Co Ltd v Dr Tse Ivan Cheong Yau, HCA 1115/2010, unreported, 8 May 2013 and in the decision of the Court of Appeal in Li Xiao Yun v China Gas Holdings Limited, CACV 38/2013, 11 March 2013….”

Further in paragraph 3:-

“The objectives of the Civil Justice Reform are to encourage early preparation of trial, dealing with cases expeditiously, cost‑effectiveness and proportionality. Although there is no doubt that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties, it can hardly be said to be just if a party is required, as a result of late applications made by its opponent at the last minute, in disregard of timetables laid down by the court in good time at case management hearings and pretrial review hearings, to plead to amendments, consider new documents and evidence, and to file supplemental witness statements at the eve of trial.”

8.  Late applications after case has been set down shall always be discouraged or even rejected, not to mention the defendant’s applications were taken out on the 2^nd day of a 5-day trial.  Bearing in mind the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties,  I am not satisfied such applications are justified.

9.  The late applications were taken out after the defendant has decided not to testify at trial for health reasons. His decision came very late, only on the 1^st day of trial. To patch up the defendant’s evidence, such applications were made to procure Madam Lo to testify on the issue of representations made at the family meeting and to speak for the defendant at trial. 

10.  In Chau Hoi Shuen, Solina Holly v. Seec Media Group Limited, HCA 1194 of 2010 (6 August 2012, unreported), the defendant applied for leave to adduce a witness statement of Mr Wang Boming, DHCJ Lok applied Chan Wing Cheung, Allan v. Ho Shu Yee Susanna, unreported, CACV 393/2004, and had observed,

“Although this case was decided before CJR, many of the observations made by Ma CJHC are equally applicable in the present case, in particular, (i) the predicament that the defendant finds itself in is entirely of his own making; (ii) the importance of Mr Wang as a witness must have been obvious to the defendant since at least the pleadings stage and the defendant has waited until the last possible moment to introduce witness statement that contains substantial matters; and (iii) indulgence sought from court should rarely be given unless there is a satisfactory explanation to justify the grant of the indulgence.”

11.  Similar to the present applications, I must say, the defendant’s predicament that he finds himself in is entirely of his own making. Medical evidence revealed the defendant has a known history of mental illness. Dr David Chan stated in his psychiatric expert report dated 14June 2014, “Mr Chan Yan Shum has been under my care for treatment of a long-standing psychotic illness (schizophrenia) for the past 42 years.”  It is not surprising that the defendant might be unable to testify, or to stand cross examination at trial.  He should be aware of the consequence that his witness statement would be rendered inadmissible.

12.  In view of the defendant’s medical conditions (which is known to his family for decades), the importance of adducing another witness, Madam Lo in testifying the representations in the family meeting should be obvious since the filing of the Defence. Late application to amend the Defence should not be allowed.

The inconsistencies in the Defence and the defendant’s evidence

13.  I am in agreement with Mr Ng’s observation on this point. Representations made in the family meeting to allow the defendant and his family to stay for an indefinite period without paying rent was inconsistent. The defendant’s case itself contained evidence that representations came from different persons. Mr Yuen finally replied in his submission that what is important was the Note, not the representations at the meeting, if this is so, the 2^nd supplementary witness statement of Madam Lo is of no probative value.  

Paragraph 23 of the Decision

14.  The 3^rd and 4^th summonses are unrelated to the 1^st and 2^nd summonses. Mr Yuen explained that these applications are taken out pursuant to paragraph 23 of the Decision is unconvincing. The relevant part of paragraph 23 only states Madam Lo’s presence was not pleaded in the paragraph 7(2) of the Defence, and hence she is unable to give evidence in relation to the representations and discussions made in the family meeting.

Conclusion

15.  As there is no exceptional circumstance in these applications, I am not satisfied leave shall be granted to the defendant to amend the Defence and to adduce the 2^nd supplementary witness statement of Madam Lo. No satisfactory explanation has been given to justify the grant of indulgence, endeavours of the defendant to salvage the situation should not be allowed.

16.  If the defendant’s late applications were allowed, in anticipation of plaintiff’s applications to request for better and better particulars and/or to adduce further supplementary witness statement, trial dates would be disrupted and adjournment is inevitable.It goes without saying it contravenes the objectives of the Civil Justice Reform and should not be condoned.

17.  I dismiss both the 3^rd and 4^th summonses. 

Costs

18.  I see no reason that costs should not follow the event, costs of the defendant’s 3^rd and 4^th summonses be payable by the defendant to the plaintiff, with certificate of counsel, to be taxed if not agreed.