Cheung Lai Mui v. Cheung Wai Shing and Others

HCA 1652/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1652 OF 2012

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BETWEEN

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D E C I S I O N

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1.By Summons dated 10 June 2016, the plaintiff applied for leave to file and serve the witness statement of one Tse King-sing.

2.The application is late.  By the consent order of Master Chow dated 19 October 2015, the plaintiff was given leave to file and serve supplemental witness statements on or before 22 October 2015.

3.Guidance for dealing with late applications for the filing of additional witness statements has been given by Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705.  At paragraphs 6 and 7, the learned Judge had this to say:

“6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights or the parties, and which must include the right of a party to rely 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 matters 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.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the Court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of Civil Justice Reform...”

4.On the basis of the principles set out above, I am of the view that the court should exercise its discretion to allow the plaintiff’s application for the following reasons.

5.First, bearing in mind the court’s primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, the present application would assist the court in coming to a just resolution of the dispute.  In my view, the evidence of Tse King-sing is relevant to the 3rd defendant’s alternative case based on adverse possession of Lot 1101.

6.Secondly, the plaintiff has given on its face credible explanation for the late application, in her 3^rd Affirmation filed on 10 June 2016.

7.Thirdly, I am unable to see any serious prejudice to the defendants.  The defendants can rebut the additional evidence from Tse King-sing through supplemental witness statements from their own witnesses.  In this regard, I am prepared to give leave to the defendants to file and serve supplemental witness statements to address the new allegations within 35 days.  In light of the content of the witness statement of Tse King-sing, it does not appear to me that much further investigation will have to be conducted on the part of the defendants.

8.Finally, the trial dates are unlikely to be disrupted.  The trial is not due to take place until 28 September 2016.  There ought to be sufficient time for the defendants to prepare further witness statements in reply.  The issues in question are straightforward issues of fact.

9.For the above reasons, I would allow the plaintiff’s application under the Summons.

Ms Dora K H Chan, instructed by So, Lung & Associates, for the plaintiff

Mr Alan Kwong, instructed by Tung, Ng, Tse & Heung, for the defendants