Chun Wo Building Construction Ltd v. Metta Resources Ltd

HCCT 29/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO. 29 OF 2013

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D E C I S I O N

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1.This is yet another interlocutory application between these resourceful and litigious parties.  It concerns Metta’s complaints on the admissibility of numerous parts, including appendices, of a large number of witness statements filed by Chun Wo.  Approximately, 1,625 pages of document are involved. 

2.Unsurprisingly, the primary stance taken by Chun Wo at the call-over hearing on 29 September 2015 was (and remains) that these complaints are unexceptional and should be dealt with at the trial.  At that hearing, this court observed that it appeared that Metta might have gone through Chun Wo’s witness statements with a fine toothcomb and identified every conceivable objection regardless of merits or without a true understanding of the hearsay evidence rule (a substantial part of Metta’s complaints concerns this rule of evidence). 

3.Metta was directed by this court to serve a Scott Schedule (“Schedule”) to identify those parts of Chun Wo’s witness statements which it says would cause real prejudice to it at the trial, so that the objection would have to be dealt with beforehand.  Further, with the aim to reducing the scope of unnecessary pre-trial arguments, it was directed that the document should be signed by Metta’s counsel.  It is regrettable that the aim has not been achieved. 

4.Metta’s objections have been grouped into 7 categories, with some alleged infringements falling into more than 1 categories, as follows :

(1) Inadmissible hearsay;

(2) Irrelevant and/or unpleaded matters (including matters of which the witness has no personal knowledge);

(3) Expression of opinion (including matters of which the witness has no personal knowledge);

(4) Statements amounting to expert opinion evidence;

(5) Comments on interpretation of contract and/or contractual certificates and documents;

(6) Statements of information and belief;

(7) Statements of pure argument or matters of submission.

5.I have considered the evidence under criticism (“Evidence”) identified in the Schedule.  With a few exceptions (“Exceptions”), I am unable to see anything which will cause real difficulty to Metta in dealing with them at the trial.  Indeed, I am surprised to see that there seems to be an assumption that the court is unable to distinguish what is and what is not admissible evidence, and to place no weight on evidence which deserves none.

6.This court is of the view that, save for the Exceptions, the evidential issues in question should be addressed in final submissions.  Indeed, I believe that a good deal of the objections will likely fall away once the evidence is unfolded at the trial.  Metta is of course free to raise them in the course of the trial, if that is how it wishes to deploy its share of the allotted time.

7.In light of the view taken, I will confine this decision to, succinctly, (a) setting out the reason why these matters should be dealt with at the trial and (b) dealing with the Exceptions. 

8.With respect, I am of the view that the suggested difficulties or prejudice in dealing with the Evidence at the trial is exaggerated.  To begin with, the issues are nothing exceptional.  Both the court and counsel deal with such issues day in day out in the course of a trial.  It is a good illustration of the point that much of the criticisms made by Metta can be applied to its own evidence.

9.Whilst the court disapproves of the inclusion of inadmissible evidence in any witness statement, one must not lose sight of the reality.  As pointed out by Mr Clayton SC, appearing with Mr Wong for Chun Wo, the rules of evidence do not inhibit a witness from setting out his story in full or in a comprehensible manner. 

10.The law is to assist and not to hinder the expeditious and just resolution of disputes.  In a case of the present type, where a witness’s evidence veered into expert territory, it may be the case that, eg, he has to explain why he took certain action, and such action cannot be fully understood without also his explanation, as a trained engineer, on why such an action was justified.  I respectfully agree with the dicta of Deputy High Court Judge Burrell in Chan Shun Kei t/a Chan Shun Kei Construction Works v Hong Kong Construction (HK) Ltd, HCCT 2/2011, unrep, 7 February 2014, §§91-93, which are relied upon by Mr Clayton. 

11.A competent tribunal will have no difficulty in identifying, and to deal with swiftly at the trial, issues of admissibility of evidence.  On the material before the court, it appears that much of the criticisms made by Metta in truth go to the weight of the evidence.

12.In respect of alleged hearsay evidence, it appears that some of the criticisms are unjustified because the use or purpose of the evidence does not infringe that rule. 

13.Further, under the agreed chess clock procedure for the trial, the parties are only obliged to put their case against 1 appropriate witness of the opposite side, and it is unnecessary for every point to be canvassed in cross-examination.  This takes much weight from the suggested difficulties in cross-examination in relation to the Evidence. 

14.Finally, it must be said that to launch a major interlocutory application on a vast amount of evidence is not normally a proportionate deployment of resources.  The parties may care little about the time and costs involved, but time taken up by them means there is less for the other court users. 

15.Turning to those parts of the Evidence which I have agreed to strike out :

Item 12 of the Schedule

There is an agreement by the Chun Wo to remove this part of its evidence because it discloses sensitive features of the Dormitory at Tsz Shan Monastery.  The evidence in question should be expunged.

Items 19 and 25

The evidence is irrelevant and it may embarrass the cross-examiner in having to spend precious time during trial to tackle irrelevant evidence.  It must also be said that if the cross-examiner were to do so, additional discovery will have to be made in respect of the 79 Deep Water Bay Road project. 

Items 32 and 75

The comparison made with another project (“The Rise”) is, at highest, a superficial one because it is not a meaningful exercise to simply count the number of ERIs without looking at what they entailed.  Hence, at best it is a point of questionable relevance.  Further, the details concerning The Rise have not been disclosed in these proceedings, and without the relevant material Metta will be hampered in dealing with the point.  There is no justification to enlarge the scope of the dispute in this action. 

Item 58

This piece of evidence is clearly hearsay, as accepted by Mr Clayton.  Without the maker of the statement available for cross-examination, it deserves little weight.  At the same time, the evidence is plainly prejudicial to Metta and supportive of Chun Wo’s case that Metta or Cheung Kong was wrongly off-loading the design responsibilities to it. 

Item 67

It has not been demonstrated that the evidence is of any relevance.  It is symptomatic that the parties are adopting a “no quarter given” approach to this litigation.  In an attempt to deflect possible attack on an admitted fact that Chun Wo had under-priced 1 item (the Flammet stone) in its tender, which is hardly surprising in the context of a substantial construction contract, evidence has been introduced to try to explain the intricacies of the tendering exercise.  Such evidence is inadmissible given the lack of relevance, and would cause embarrassment to Metta in dealing with the same because much additional resources will have to be deployed in exploring the same. 

Mr Peter Clayton SC and Mr Jonathan Wong, instructed by J Chan, Yip, So & Partners, for the plaintiff

Mr John Scott SC and Mr Anthony HK Chan, instructed by Hogan Lovells, for the defendant