Chan Ting on v. Multi Skill Investments Ltd

DCCJ 2786/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2786 OF 2013

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DECISION

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Introduction

1.On 18 November 2015, this case was set down for trial.  The trial is to commence today.

2.At the eleventh hour, the defendant took out a summons on 19 July 2016 under O 38 r 2A, seeking leave to file a 2^nd supplemental witness statement of Ma Yuen Mo ("Ma").

Legal Principle

3.Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705 had this to say:-

"5. ... whether or not to accede to a party's late application to rely on a witness statement deposing to relevant and admissible facts, must be exercised within the ambit of the Court's management power and in the light of the objectives of Civil Justice Reform, including the need to ensure the cost-effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties.

6. ... 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."

Analysis

4.The purpose of the 2^nd supplemental witness statement of Ma is to put down in print his hand-written records on the savings account passbook of the defendant and to state certain facts in relation to certain entries in the passbook.

5.The objection of Mr Erik Shum, counsel for the plaintiff, is that the application was made lately.  In the absence of an explanation justifying the last minute application, the court should not condone the same.  Mr Shum submitted that if the application is allowed, the plaintiff suffers the prejudice of being unfairly and oppressively burdened by having to scramble up a response to the new evidence in reply to the defendant's application.

6.Indeed this is a very late application.  However, lateness itself is not a deciding factor in considering whether the application should be allowed or refused.

7.The bank passbooks were already put in evidence by the defendant.  The hand-written records have revealed themselves thereon.  To assist the court, the maker of the records, namely, Ma, will in any event be required to explain what were written by him.  The plaintiff indeed has the right to cross-examine him on those records.

8.As noted by Mr Shum, those records were privy to the defendant or to Ma, I do not think the plaintiff could have anything to say in reply.  For this reason, there would not be a disruption of the trial dates, save and except that this court is required to deal with the defendant’s summons beforehand.

9.In opposing the summons, Mr Shum produced 3 authorities.  Mr Shum is no doubt very familiar with them as he was the opposing counsel of the first 2 cases.

10.I think the situations that gave rise to the late applications in those 3 cases are quite difference from the present case.

11.In Nam Ching Wun v Tsun Un Pawn Shop and others, HCA 2151/08, 7/10/2014, the plaintiff sought leave to file and serve a witness statement of an additional witness 6 days before the Pre-trial Review.  In Hongkong Changyi Real Estate Development Ltd v Neo-China (Group) Infrastructure Investment Ltd, HCA 1576/2011, 25/2/2014, the defendant sought leave to amend its Defence 3 weeks before the Pre-trial Review which raised new matters to which the plaintiff would have to plead as well as file evidence to answer the factual matters raised.  In Liu Chen v Keung Wai Ming, HCPI 779/2006, 7 October 2009, the plaintiff sought leave to file and serve his witness statement on the day of the hearing of the Assessment of Damages which was 2 ½ years out of time.

12.With respect, those situations are very different from the present case as Ma is already a factual witness and he has filed 2 witness statements before setting down.

13.That being the case, I do not think that the plaintiff would be prejudiced by the 2^nd supplemental witness statement of Ma.  Obviously, the trial dates would not be disturbed by allowing the statement to be put in.

Conclusion and Order

14.For the above reasons, I would allow the defendant's application and make an Order in terms of paragraph 1 of the summons.

15.The plaintiff shall have the costs of this application in any event with certificate for counsel.

16.The plaintiff’s own costs shall be taxed in accordance with Legal Aid Regulations.

17.For taxation purpose, the defendant’s application was concluded at 11.30 am today.

Mr Erik Shum, instructed by Hobson & Ma, assigned by the Director of Legal Aid, for the plaintiff

Mr Gary Lam Chin Ching, instructed by Fu & Cheng, for the defendant