HING YIP HOLDINGS (HONG KONG) LTD v. CELLMARK CHINA LTD AND ANOTHER

HCCL 15/2016

[2020] HKCFI 1764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 15 OF 2016

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R U L I N G

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1.  The order granting leave to the parties to adduce expert evidence in this case was made on 8 June 2016 at the hearing of the case management summons. Expert reports have since been filed and served.

2.  After the completion of factual evidence at the trial, and after the Plaintiff’s expert has completed his evidence, the 2^nd Defendant’s expert Mr Lee was called and it was at that stage that the Plaintiff objected to the admission of and reliance on the expert reports of Mr Lee, on the ground that Mr Lee’s provisional report dated 15 December 2017 and his final report dated 20 July 2018 did not contain any signed statement of truth nor any declaration as required by Order 38 rule 37C of RHC (“Declaration”), that he has read the code of conduct set out in Appendix D , agrees to be bound by it, that he understands his duty to the Court and has complied with and will continue to comply with that duty.

3.  The 2^nd Defendant claims that this objection was made too late in the day, without any prior indication, but the Plaintiff’s stance is that it was entitled to wait to see if the missing statement and Declaration would be produced when Mr Lee is called to give evidence, and also to ascertain from Mr Lee in the witness box whether he had read Appendix D and understood his duty to the Court, and the reason why the statement of truth and Declaration had not been included earlier.

4.  I agree that the objection to the absence of the statement and the necessary Declaration could and should have been raised much earlier before the commencement of trial, so that the defect can be explained and rectified in good time. However, I accept that the statement of truth and the Declaration are important and fundamental documents, and that it is the duty of the party seeking to rely on the expert reports to ensure that they are properly included in the reports and are properly signed, and understood by the expert.

5.  Mr Manzoni highlighted that Order 38 rule 37A and Order 41A rule 2 make it clear that an expert report “must” be verified by the statement of truth, and that Order 38 rule 37C makes it clear that neither an expert report nor oral expert evidence is admissible unless the declaration is contained in the report. The purpose of the requirement is to remind the expert preparing the report that his duty to assist the Court overrides any obligation to the person from whom he has received instructions.

6.  The only statement signed by Mr Lee is the one contained in the Joint Report of 22 June 2018, in which he confirmed the truth of the facts stated in the Joint Report, and declared that he understood his duty to assist the Court which duty overrides any obligation to the party by whom he is engaged. The Joint Statement sets out the areas of agreement between Mr Lee and the Plaintiff’s expert, summarizes the areas of their disagreement and the questions on which they had failed to reach a common opinion.

7.  When Mr Manzoni commenced to cross-examine Mr Lee, the witness did confirm that he had read Appendix D at the time when he was appointed as the Defendant’s expert, and that he knew that he had to comply with the rules of the Court. Mr Lee also confirmed in his examination-in-chief that the opinions expressed in his provisional and final reports were his true and honest opinion, and adopted same as his evidence.

8.  Under Order 41A rule 2, the Court may direct that an expert report need not be verified by a statement of truth if it considers that it is just to do so in a particular case. Mr Manzoni has highlighted that the court has no discretion to dispense with the expert’s Declaration required under Order 38 rule 37C.

9.  Order 1A rule 2 (1) RHC provides that when the Court interprets any of the rules or exercises any of its powers under its inherent jurisdiction or pursuant to the rules, it shall seek to give effect to the underlying objectives of Order 1A. Rule 2 (2) provides that in giving effect to the underlying objectives, the Court shall always recognize 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. I have no intention of undermining the importance of the statement of truth and the Order 38 Declaration, but bearing in mind that the Plaintiff has been given adequate and full notice of the contents of Mr Lee’s expert reports, and the fact that the Plaintiff’s expert has had the full opportunity to consider and respond to Mr Lee’s views as expressed in his reports, the Plaintiff cannot be seen to have suffered any prejudice as a result of the absence of the statement of truth and the Declaration. It may be argued that without signing and including the statement of truth and Declaration in his provisional and final reports, there is doubt as to whether Mr Lee truly understands his duties to the Court, or believes in the truth of the statements of fact, or honestly holds the opinion expressed in his reports. These go to the weight to be attached to his reports and the Plaintiff may pursue these by cross-examination and in submissions as necessary.

10.  Having regard to the timing of the application to exclude the relevant expert reports, the statement and declaration contained in the signed Joint Report, and the lack of any real prejudice to the Plaintiff, I will allow the 2^nd Defendant to rely on the provisional and final written reports of Mr Lee, in order to secure the just resolution of the dispute in these proceedings. This is subject to Mr Lee signing and filing the necessary statement of truth and Declaration before he continues to give evidence.