CHUBB LIFE INSURANCE COMPANY LTD (formerly known as ACE LIFE INSURANCE COMPANY LTD) v. CHAN CHRISTY

DCCJ 4461/2019

[2023] HKDC 816

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4461 OF 2019

________________________

________________________

________________________

DECISION

________________________

1.  This case is set down for trial on 8 August 2023 for 6 days. Pre-trial review of the case is scheduled on 6 June 2023. On about 19 May 2023, the plaintiff took out summons pursuant to Order 38 rule 2A of the Rules of the District Court (Cap 336H). By the plaintiff's summons, the plaintiff seeks leave to file the 3^rd Supplemental Witness Statement of Chow Sau Chun. The plaintiff's application for leave is supported by the affirmation of Chow Sau Chun filed on 19 May 2023.

2.  By the affirmation of Chow Sau Chun, the plaintiff stated that the plaintiff's solicitors had endeavoured to inform two of the plaintiff's witnesses to attend the trial and give evidence at the trial.  The two witnesses are Mr Hans Choi (‘Hans’)  and Mr Alex Wong (‘Alex’)  who had filed their witness statements for the plaintiff.  Hans and Alex had left the employ of the plaintiff on about 7 October 2020 and 1 July 2021 respectively.

3.  In particular, the plaintiff's solicitors successfully contacted Hans on three occasions between 15 March 2023 and 14 April 2023.  Hans, however, informed the plaintiff's solicitors that he would be out of Hong Kong from 19 June 2023 to 15 September 2023.  Hence, he would not be able to give evidence at the trial.

4.  With respect to Alex, the plaintiff's solicitors successfully contacted Alex on four occasions between 15 March 2023 and 12 May 2023.  However, Alex informed the plaintiff's solicitors that he was unwilling to give evidence for the plaintiff.

5.  In view of the development of the case, the plaintiff took out the present summons and sought leave to file the 3^rd Supplemental Witness Statement of Chow Sau Chun.  A draft of it was annexed to the present summons.

6.  The draft 3^rd Supplemental Witness Statement of Chow Sau Chun contains two parts.  The first part of it (from paragraphs 6 to 17)  concerns the Plaintiff's endeavour in asking Hans and Alex to attend the trial and give evidence for the plaintiff.  But they refused.  The plaintiff exhibited the relevant email correspondence between the plaintiff's solicitors to Hans and Alex, totaled 5 pages.

7.  The second part of the draft 3^rd Supplemental Witness Statement concerns Chow Sau Chun's view about the contents of the witness statements of Hans and Alex based on her personal experience or her understanding of the plaintiff’s practice.  The witness statement of Hans and the witness statement of Alex (together with their attachments)  are also annexed to the draft 3^rd Supplemental Witness Statement of Chow Sau Chun as her exhibit.  It seems that Chow Sau Chun is going to adopt the witness statements of both Hans and Alex as her evidence-in-chief.

Legal Principles

8.  The legal principle concerning the exercise of the court's discretion of granting leave to file supplemental witness statement after the case has been set down for trial is summarized in Parsad v Great Wealthy Engineering Co. Ltd [2012] 3 HKLRD 705.  In Parsad case (supra), the Court of First Instance held that whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to reply on admissible, relevant and probative factual evidence, the Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application.  These factors have to be considered and weighed in the light of and against the underlying objectives of Civil Justice Reform to ensure costs effectiveness and economy, expedition, proportionality, and fairness between the parties: Parsad case (Supra)  at paras. 5 and 6.

The Disputes

9.  In the present case, the plaintiff relied on three agreements entered by the plaintiff and the defendant, namely the Agent's Agreement dated 8 September 2014, the Manager Agreement dated 8 September 2014 and the Remuneration Agreement dated 16 September 2014.  The plaintiff pleaded that the defendant's Agent Agreement was terminated on 15 July 2018 which was less than 4 years from the effective date of 8 September 2014.  Hence, the plaintiff sought to enforce the express terms of the three agreements and claimed the defendant for HK$2,323,927.14 as debt.

10.  The defendant denied the plaintiff's claim.  The defendant sought to rely on the oral promise (“Oral Promise”)  which was made by Mr Daniel Tang and Alex from November 2013 to August 2014.  The alleged Oral Promise was given before the three agreements were signed in September 2014.  Furthermore, the defendant also sought to reply on the representations which were made during various meetings between January or February 2017 and 6 June 2018.  The defendant alleged that during those meetings, certain representations were made by the plaintiff through Hans, Alex, Rhonda Hui, Anna Tam and/or Michael Ho.

11.  Whether the plaintiff’s representative or staff had made the Oral Promise or any oral promise or certain representations is mainly a matter of facts.  It is not in dispute that Chow Sau Chun was not present in those meetings.

The First Part of the Draft 3^rd Supplemental Witness Statement

12.  Given the recent development of the case, I find it fair and reasonable for the plaintiff to give evidence on its endeavour to invite Hans and Alex to give evidence.  The plaintiff said that when its solicitors enquired with Hans and Alex, they informed the plaintiff’s solicitors that the contents of their witness statements were true and correct.  This is a matter of hearsay nature and I believe the court will attach appropriate weight to it as it deserves.

13.  There is no suggestion that the first part of the 3^rd Supplemental Witness Statement will cause any prejudice to the defendant.  Hence leave is granted to the plaintiff to file the first part of the draft 3^rd Supplemental Witness Statement of Chow Sau Chun, i.e. paras 1 to 17 including pages 1 to 5 of the draft exhibit CSC-4.

The Second Part of the Draft 3^rd Supplemental Witness Statement

14.  The second part of the 3^rd Supplemental Witness Statement of Chau Sau Chun is different.  Madam Chow sought to express her personal view about the likelihood of making the Oral Promise and those representations as alleged by the defendant, based on her personal view and her understanding of the plaintiff’s company practice and etc.  Madam Chow also purports to incorporate the witness statements of both Hans and Alex (including the attachments to their witness statements)  as part of her evidence.

15.  I find that the personal view of Madam Chow, whether based on her experience or understanding of the plaintiff’s practice is of little probative value, if any.  Alternatively, it is of marginal relevance.  If the plaintiff really intended to rely on its alleged company practice or the personal view of Madam Chow as a defence, to the effect that it was less likely or improbable that the plaintiff would have made the Oral Promise or the alleged representations, the plaintiff could have pleaded the same much earlier at the pleading stage.  Likewise, Madam Chow could have stated the same on her three witness statements dated 7 October 2020, 21 May 2021 and 10 September 2021.

16.  In any event, it is now too late for the plaintiff to invoke the personal view of Madam Chow as part of the plaintiff’s reply to the defendant’s allegations.  The defendant might need to investigate if Madam Chow’s view is well founded or to adduce further evidence to rebut Madam Chow’s view.  Likewise, the defendant might need to adduce further evidence about the plaintiff’s company practice in rebuttal.  Given the little probative value of this piece of evidence in this case, to invoke this line of argument at such a late stage is not only not costs effective, but would be unfair for the defendant because she has left the employ of the plaintiff already.

17.  Hence, leave to file the second part of the draft 3^rd Supplemental Witness Statement of Chow Sau Chun, i.e. paras 8 to 49, including pages 6 to 48 of draft exhibit CSC-4, is refused.

18.  In the premises, it is ordered that the plaintiff shall file and serve the 3^rd Supplemental Witness Statement of Chow Sau Chun which shall contain paragraphs 1 to 17 (including pages 1 to 5 of the draft exhibit CSC-4)  of the said draft annexed to the summons within 14 days of this order.

19.  Having considered the facts leading to this application, I am persuaded by Miss Ho, counsel for the plaintiff, that costs of and occasioned by this application be in the cause, with certificate for one counsel.