WONG WAI WING v. MANG FAN LIN

HCMP 1498/2016

[2019] HKCFI 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1498 OF 2016

______________

______________

____________________________

REASONS FOR DECISION

____________________________

Introduction

1.  This was the plaintiff’s appeal against the decision of Master Kot on 26 February 2019 refusing to grant leave to the plaintiff to issue two subpoenas duces tecum directing two partners of ONC Lawyers, who represent the defendant, to produce certain documents, and a subpoena ad testificandum, directing one Ng Kit Man, Piera (“Ms Ng”), a solicitor of ONC Lawyers, to testify at the trial (collectively, the “Subpoenas”).

2.  The plaintiff’s application for the Subpoenas was made by wayof an inter partes summons dated 11 January 2019, just under three months before the trial. 

3.  The documents sought include those under ONC Lawyers’ reference No 130025/‌FMMS/‌C/‌277/‌SY/‌PKN and/or 140999/‌MISC/‌C/‌277/‌ SY/‌PKN, evidencing the preparation, drawing up and execution by the plaintiff of (a) the Maintenance Agreement and (b) the Consent to Divorce, which are the subject of the trial.

4.  The plaintiff took out a summons to set aside Master Kot’s decision on 8 March 2019.

5.  The hearing of the appeal took place on the first day of the 7‑day trial on 16 April 2019. 

6.  At the conclusion of the hearing, I dismissed the appeal on the ground of delay alone without considering the merits of the plaintiff’s application and the relevance of the evidence sought.  I gave brief reasons for my decision, with detailed written reasons to be handed down.  These are my reasons.

Background

7.  These proceedings concern a Maintenance Agreement dated 21 August 2013 (the “Maintenance Agreement”) and the financial arrangements contained in a consent order dated 31 March 2014 (“Consent Order”) entered into by the plaintiff and the defendant in connection with their divorce. 

8.  The plaintiff seeks, amongst other relief, to set aside the Maintenance Agreement and the financial arrangements in the Consent Order on the bases that they were entered into by (1) misrepresentation (a ground which the plaintiff will no longer pursue); (2) undue influence; and (3) unconscionable bargain.  The defendant counterclaims the sum of HK$393,000 which she transferred to the plaintiff on 9 October 2013. She claims it belongs to a friend of hers.  These are matters for trial.  This appeal relates purely to the Subpoenas.

Chronology of the plaintiff’s application for the Subpoenas

9.  The following events are adopted from a Composite Chronology which is a reproduction of the plaintiff’s chronology of material events, with the defendant’s amendments and comments.  This was not challenged by the plaintiff at the appeal.

10.  During the course of the proceedings, and as early as 16 December 2016, issues were raised by the plaintiff about the propriety ofONC Lawyers continuing to act for the defendant given their involvement in the preparation and execution of the Maintenance Agreement by the plaintiff and defendant and the Consent Order.

11.  On 19 June 2018, the plaintiff filed the Listing Questionnaire for the Case Management Conference (“CMC”).  He confirmed in the Listing Questionnaire, amongst other things, that (1) no further interlocutory applications would be made; (2) discovery had been completed; (3) all steps that ought to be taken to prepare the case for trial had been duly taken; (4) it was appropriate in all the circumstances to set the case down for trial.  The estimate for the length of the trial was six days.  The plaintiff’scounsel’s certificate giving time estimates for the trial stated that the overall time for the plaintiff’s submissions and examination of witnesses would be approximately four days. This was on the basis of there being five witnesses in total.

12.  On 22 June 2018, the plaintiff’s solicitors demanded in correspondence that both the defendant and her solicitors ONC Lawyers, as a non-party to the proceedings, provide (a) discovery of the relevant files regarding the Consent Order and Maintenance Agreement; and (b) discovery of the name of the handling solicitor involved in the preparationand execution of the Maintenance Agreement and the Consent Order.  Thelatter was expressly for the purposes of issuing a subpoena for the solicitor to testify as to the circumstances in which the plaintiff entered into the Maintenance Agreement and Consent Order.  However, no applications were made by the plaintiff against the defendant or ONC Lawyers.

13.  The CMC took place on 27 June 2018.  Master Lung orderedthat the trial be fixed for seven days before a bilingual Judge in consultation with counsel’s diaries.

14.  On 1 August 2018, the trial was fixed for seven days, commencing on 16 April 2019.

15.  The defendant claimed that she was not aware of the following events at the relevant times:

(a)   19 November 2018: over three months after the fixing of the trial date, the plaintiff’s solicitors received the draft Subpoenas from the plaintiff’s counsel Mr Chong. 

(b)   20 November 2018: the plaintiff’s solicitors wrote to Hon Ng J for directions for the issue of the Subpoenas.

(c)   26 November 2018: the clerk to Hon Ng J called the plaintiff’s solicitors informing them that an application should be made to the Master who handled the CMC.

(d)   29 November 2018: the plaintiff’s solicitors wrote to Registrar Kwang for directions for the issue of the Subpoenas.

(e)   3 December 2018: the plaintiff’s solicitors were told by the Master’s clerk that the application would not be entertained by the Registrar and the documents were returned to the them.

(f)   7 December 2018: the plaintiff’s solicitors wrote to the Judiciary Administrator seeking assistance.  The plaintiff was informed that they should apply to the Practice Master for the issue of the Subpoenas.

(g)   10 December 2018: the plaintiff’s solicitors wrote to clerk to the Practice Master for directions on the issue of the Subpoenas and were told to wait for a response.  A written note to Ms Ching of the plaintiff’s solicitors by the Practice Master’s clerk dated 10 December 2018 says “Ms Ching, we spoke. Please prepare praecipe payment and lodge with original for approval.  Chan, Clerk to PI, ok 10.12) [sic]”.  I have looked at the handwritten note myself.  It appears that part of her handwriting, which is near the right margin, may well have been cut off when it was photocopied, and “I” is probably part of “M” so that it should read “PM”, ie Practice Master, and “10.12” should be followed by “18”.

(h)   16 December 2018: (this probably should be 10 December as not only was 16 December a Sunday, but as stated in the preceding paragraph, the clerk’s note was dated 10 December 2018) the clerk to the Practice Master returned the draft Subpoenas with amendments and requested the plaintiff’s solicitors to pay for and lodge the original of the Subpoenas for the court’s approval.  This was not done until 9 January 2019, ie after the Pre-Trial Review (“PTR”) on 21 December 2018.

(i)   21 December 2018: the PTR took place.  Neither the defendantnor the court were informed of the plaintiff’s imminent issue of the Subpoenas.

(j)   9 January 2019: the plaintiff’s solicitors paid the praecipe and wrote to Practice Master Grace Chan applying for the issue of the Subpoenas, setting out the background and reasons for his application.  Three draft combined subpoenas (duces tecum and ad testificandum) for two partners and Ms Ng were submitted for the Practice Master’s approval.  According to the plaintiff’s solicitors, the Practice Master’s clerk wrote to inform them that “(1) application for subpoena should be made ex parte to be supported by an affirmation; (b) since the subpoena might though privileged document, the P should take out an inter partes summons” [sic]. The defendant pointed out that what the Clerk’s note actually said was “Application of this kind may be made ex parte without a summons, but require an affidavit stating the reasons” [sic] and that the plaintiff had never provided such an affidavit in support.

(k)   11 January 2019: the plaintiff took out a summons for leave to issue the Subpoenas, returnable on 17 January 2019 beforeHon Ng J, with a supporting affirmation.  The defendant saidthis was the first time she had become aware of the plaintiff’s intended application for leave to issue the Subpoenas.

(l)   17 January, 2019: Hon Ng J gave directions for the filing of a further affirmation. 

(m)   26 February 2019: the plaintiff’s summons to issue the Subpoenas was heard by Master Kot who refused to grant leave.

16.  According to the defendant’s counsel, at the hearing before Hon Ng J, the learned Judge expressly stated that the plaintiff’s application was to be considered solely on the bases of delay and abuse of process, and not the relevance and usefulness of the evidence.  The learned Judge referred to three cases for the parties’ consideration: (1) Li Man York Evelyn v Li Wai Tat Walton [1997] 3 HKC 532; (2) Waters v Malahon Credit Co Ltd [2004] 2 HKC 94; and (3) Waddington Ltd v Chan Chun Hoo Thomas & Ors (unreported) HCA 3291/2003, Deputy High Court Judge Lok (as he then was), 7 June 2013.

The appeal

17.  It is trite that an appeal from a Master to a Judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and that the Judge treats the matter as though it has come before him for the first time.  The Judge will give the weight it deserves to the previous decision of the Master but he is in no way bound by it.  The Judge in chambers is in no way fettered by the previous exercise of the Master’s discretion, and on appeal from the Judge in chambers, the Court of Appeal will treat the substantive discretion as that of the Judge, and not of the Master.  (Hong Kong Civil Procedure 2019, 58/1/2.)

The Court’s view

18.  It is clear from the above chronology that the formal application for the issue of the Subpoenas was taken out on 11 January 2019, three months before the trial was due to commence.  This was despite the fact that the plaintiff’s solicitors had contemplated seeking discovery of:

(1)   the documents from the defendant and ONC Lawyers as non-party; and

(2)   the name of the handling solicitor at ONC Lawyers who was involved in the preparation, drawing up and execution by the plaintiff of the Maintenance Agreement and the Consent Order  

on 22 June 2018 when they first made such demands.

19.  The main issue is, therefore, whether there had been a delay in the plaintiff making the application on 11 January 2019, when the trial was due to commence on 16 April 2019.  What the court had to consider was whether, and the extent to which, the timing of the application and of the appeal would affect the trial, which is of course a milestone date.

20.  It has to be borne in mind that the trial date was fixed on 1 August 2018 based on the answers to the Listing Questionnaire in which the plaintiff confirmed, inter alia, that (1) the matter was ready for trial; (2) all steps that ought to be taken to prepare the case for trial had been duly taken; and (3) there would be five witnesses.

21.  The plaintiff did not inform the court of his intention to issue the Subpoenas at the CMC on 27 June 2018.  Despite correspondence between the plaintiff’s solicitors and different personnel of the judiciary from 19 November 2018 to 10 December 2018 in connection with the issue of the Subpoenas, the plaintiff still did not raise the issue at the PTR on 21 December 2018, even though the plaintiff’s solicitors were asked bythe court on 10 December 2018, ie eight working days earlier, to pay for theSubpoenas and lodge the originals for the court’s approval.  The defendantonly knew about the plaintiff’s inter partes summons for leave to issue the Subpoenas when it was issued on 11 January 2019.

22.  Master Kot dismissed the plaintiff’s summons with costs to the defendant on 26 February 2019.  The plaintiff took out a summons to set aside the Master’s decision on 8 March 2019.

23.  The fact that the hearing of the appeal took up time (1 hour 15 minutes) on the first day of the trial is self-evident of the effect on the trial.  Not only was the morning of the first of the seven days reserved for the trial taken up by the appeal, but the parties, and in particular the court, had to prepare for the appeal prior to the trial, when their time should have been used to familiarise themselves with the case and prepare for trial. 

24.  As Mr Chow, the defendant’s counsel, submitted, if leave were granted to the plaintiff, it could have led to a number of consequences, including derailing the trial.  This was because (1) the subpoena witnesses may have asked for time to produce the documents, or sought to set aside the Subpoenas (see Li Man York Evelyn v Li Wai Tat [1997] 3 HKC 532, 534D); (2) more time would have been required to examine the witness testifying under the subpoena ad testificandum if she did not seek to set aside the subpoena, as the earlier estimated length of the trial was based on five witnesses, which could have led to the trial being only part heard; and (3) the propriety of ONC Lawyers continued involvement, raised by the plaintiff, could have led to a change of the defendant’s solicitors at this late stage and hence the adjournment of the trial, unless the defendant were to act in person.

25.  Mr Chong submitted that until and unless the trial date was known, the plaintiff could not have issued the subpoena ad testificandum.  If the subpoena had been granted, it would have led to the addition of a fresh witness to the trial.

26.  Faced with such an application shortly before the trial, the court has to consider its effect and whether it is possible that the testimony from an additional witness would derail the trial.  The names of all witnesses should be included in the Listing Questionnaire unless there are good reasons to the contrary, to avoid the possibility of the court disallowing him/her to testify at the trial.  (Waddington Ltd v Chan Chun Hoo Thomas & Ors (unreported) HCA 3291/2003, Deputy High Court Judge Lok (as he then was), 7 June 2013, paragraph 21.)

27.  So far as the subpoena duces tecum is concerned, there is no reason why the summons could not have been issued first, given that a notional trial date could have been fixed for the purposes of receiving the documents by the non-party against whom the subpoena was issued (see Khanna v Lovell White Durrant (a firm) [1995] 1 WLR 121; Hong Kong Civil Procedure 2019, 38/19/7).

28.  Mr Chong’s further submission that the defendant’s solicitors were warned on 16 December 2016 and 22 June 2018 about the propriety of their continued representation of the defendant did not assist him as no action was ever taken against the defendant or ONC Lawyers until the plaintiff’s summons for the Subpoenas was issued on 11 January 2019, three months before the trial was due to start.  No explanation was given for not taking out the discovery and non-party discovery applications earlier, despite the demand from the plaintiff’s solicitors on 22 June 2018 for the files and the name of the handling solicitor from ONC Lawyers.

29.  The plethora of correspondence between the plaintiff’s solicitors and the court between 20 November 2018 and 16 December 2018 regarding the issue of the Subpoenas suggests that the former were unfamiliar with the procedure for issuing the Subpoenas.  This no doubt contributed to the delay in issuing the inter partes summons.

30.  It is regrettable that the defendant and the court were not informed of the plaintiff’s imminent issue of the Subpoenas at the PTR on21 December 2018.  This is despite the note of 10 December 2018 from thecourt asking the plaintiff to prepare praecipe payment and lodge the original Subpoenas for approval, and the Listing Questionnaire stating that there were no further interlocutory applications and the matter was ready for trial.  

31.  This state of affairs is most unsatisfactory from a case management perspective.  Practitioners should not and must not treat answering the Listing Questionnaire as a perfunctory box ticking exercise. The questions are asked with a view to ensuring that the case is indeed ready for trial.  The parties must give serious and careful thought as to whether matters that need to be dealt with have indeed been dealt with before setting the case down for trial, and that the parties are indeed ready for trial.  Matters and developments relevant to and affecting the trial should be disclosed at the case management conference and pre-trial review.  

32.  The courts have emphasised that the proper stage to deal with questions relating to the issue of subpoenas for witnesses is at the case management conference, and that in exercising its power to grant leave to issue a subpoena, at least in respect of late applications, the court must also bear in mind its case management duties.  In addition, the court will have to examine all the relevant circumstances, and the significance of the intended evidence to be adduced is one factor to be taken into account (Chan Cheung Ming Jacky v Siu Sin Man (formerly known as Siu Kit Ling)[2014] 6 HKC 570 at 576B–C, 577G per Lam VP).

33.  In respect of the significance of the intended evidence, I can see no reason why the plaintiff could not have taken out discovery applications against the defendant and ONC as a non-party earlier, and why the evidence the plaintiff sought from Ms Ng under the subpoena ad testificandum could not be obtained from the plaintiff and the defendant during the trial.  I fail to see, therefore, what added probative value the intended evidence sought by the Subpoenas would have, which the plaintiff could not otherwise have obtained from timely discovery applications, or cannot obtain from the evidence to be given by the plaintiff and the defendant at the trial.

34.  Paragraph 34 of Practice Direction 5.2 on Case Management provides that “A PTR is not an extension of the CMC.  The Court expects a case to be ready for trial.  Late interlocutory applications may be dismissed on the basis of delay alone.”

35.  Further, paragraph 38/19/3 of Hong Kong Civil Procedure 2019 provides that “Any application to issue a subpoena should be disposed of before the pre-trial review.  In the absence of good and strong reasons, a late application may be dismissed on the basis of delay alone.  Such dismissal applies with even greater force when it is taken out in the course of the trial”.

36.  In answer to some of the issues above, in particular on the issue of delay, Mr Chong submitted that the defendant should not be surprised by the plaintiff’s application as her solicitors had been forewarnedof the likelihood of them having to give evidence as early as in 2016.  But this did not assist him as this reinforces the delay on the plaintiff’s part in issuing the summons for the Subpoenas. 

37.  He also submitted that as the application was not against the defendant, she could not suffer any prejudice, and that she had given no evidence as to what prejudice she would suffer.  The defendant has in fact given evidence on the prejudice she may suffer in paragraph 14 of her 10^thaffirmation, which affirmation Mr Chong himself has referred to in his submissions, albeit on the issue of abuse of process.

38.  Mr Chong made reference to Order 1A, rule 2 of the Rules of the High Court regarding the need to secure just resolution of disputes in accordance with the substantive rights of the parties.  This is often relied upon by parties to justify late applications for, amongst other things, discovery and filing of further witness statements.  However, Order 1A, rule 2 does not trump the underlying objectives of the Civil Justice Reform under Order 1A, rule 1, which include ensuring that a case is dealt with as expeditiously as is reasonably practicable, and promoting a sense of reasonable proportion and procedural economy in the conduct of proceedings (Order 1A, rule 1(b) – (c)).

39.  As I was considering the appeal on the issue of delay alone, I did not need to consider the other merits, including whether the documents sought to be produced were privileged, and the propriety of ONC Lawyers’ continued representation of the defendant.  The authorities cited by Mr Chong in support of his propositions on these were therefore of little relevance.

Costs

40.  A party making a late application should normally expect to face an adverse costs order on an indemnity basis:

“ Unmeritorious appeals against case management decisions, at least last-minute urgent appeals, are to be deplored since not only are they satellite litigation increasing the costs of the judicial process, they also tend to disrupt the preparation for trial on the part of those representing the opposing party. It is wholly inconsistent with the spirit of the underlying objectives in Order 1A Rule 1 and the duties of the parties and their lawyersunder Order 1A Rule 3. Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs.”

(Lam JA (as he then was), Li Xiao Yun & Anor v China Gas Holdings Ltd (unreported) CACV 38/2013, 11 March 2013, para 18.)

Conclusion

41.  For the above reasons, I dismiss the appeal.  Having considered the parties’ submissions on costs, I am satisfied that this is a case where indemnity costs should be ordered against the plaintiff, and I so order, to be taxed if not agreed.