Cwg v. Mh and Others

HCMP 643/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 643 OF 2012

____________

____________

_______________________________

REASONS FOR RULING
(O. 38 r. 2 of RHC)

_______________________________

1.R2, the mother of R1 the Husband in these proceedings, has issued an application for leave for her to adduce an affirmation affirmed and filed on 13 September 2012 including a Witness Statement referred therein (filed as an exhibit to the Husband’s 30^th affirmation of 31 August 2012) and her two affirmations filed on 9 October 2012 as evidence to be used in the present trial without attending the trial for cross-examination by the Applicant Wife or other parties.

2.The present trial is essentially in relation to the Wife’s Part IIA application under the Matrimonial Proceedings and Property Ordinance, her application to set aside certain dispositions and the Husband’s application for variation downward of the interim maintenance order,

3.R2 has been joined by the Wife on 14 May 2012^[1]. There have been other witnesses who purportedly spoke on R2’s behalf but R2 did not file any affirmation until after Poon J ordered on 10 August 2012 that R2 should within 21 days file and serve an affirmation, making certain disclosures^[2].   Eventually R2 filed her 1^st affirmation on 13 September 2011.  Since then, R2 has filed 2 further affirmations, one in connection with this present application.  Prior to R2 filing her 1^st affirmation, the Wife had issued a Notice to Cross-Examine R2 on her Witness Statement.  Counsel for the Wife, Mr Chow, has made known during the hearing that it is the Wife’s wish to cross-examine R2 on all her affirmations.  Apart from the Wife, the other parties no longer seek to cross-examine R2.

4.There does not seem to be any dispute that in these proceedings that apart from the Wife and the Husband, R2 is a significant and crucial witness herein, as it is Husband’s allegations that all the companies, of which the Wife or her mother Madam Lai had been a director or a shareholder ^[3] were in fact controlled by R2, and that the shares held by the Wife or Madam Lai in such companies were all held on trust for R2.  These companies include the company which holds two Estoril Court Flats, which Wife says was the former matrimonial home, and also another company which holds the Grand Panorama Flat which the Wife describes as an extended matrimonial home and where the Wife is now residing.

5.Thus, Mr Chow has submitted that if the Wife is not given the opportunity to cross examine R2 and test the veracity of R2’s evidence and the documents she has lately produced, this will be grossly unfair and prejudicial to the Wife’s case, which is not in the interest of justice to do so.

6.R2 is now 89.  She first submitted 2 medical reports on the 1^st day of this trial from Dr Tse Tak Fu, the first of which states that R2 has been attending his clinic since 1996, and that she suffers from long standing hypertension, heart disease, old age, and fragility, and unlikely to be able to keep calm with any kind of emotional upset, which would result in uncontrolled hypertension, with a risk to developing stroke or heart attack.  The second report states among other things that she suffers from hypertension, heart disease and senility, amongst other diseases.

7.The two reports were very brief, and the second one states that in the opinion of the doctor, R2 is “medically non-fit for trial” as the stress of trial would likely precipitate catastrophic events, which could be unpredictable particularly at her age.  There was nothing in these two earlier reports as to whether R2 could give evidence by way of video link.  What R2 herself has said in her affirmation was that Dr Tse pointed out to her that if she went to the witness box, there would be a lot of people in Court looking at her.  R2 has further alleged that both Dr Tse and her agreed that even with video link, she would still become very stressful resulting in threat to her life.  I do not, however, see such evidence from Dr Tse’s two earlier reports.

8.In the circumstances, at the end of the 1^st day of the trial, I indicated that I was not satisfied that R2 would not even able to give evidence by video link.  I was of the view that she should at least try.  I therefore ruled that R2 should give evidence by video link.  Then, the next day, on 11 October 2012, Mr Li SC, Leading Counsel for R2, produced a third report from Dr Tse dated 10 October 2012[4]. This now states that R2 will definitely find the court trial and/or video-linked examination stressful and cause emotional upset.

9.R2 clearly does not intend to attend court or through video link to give evidence and to be cross-examined.  The issue is then whether her affirmations should be admitted or used as evidence under Order 38 rule 2(3) of RHC.  On the 2^nd day of trial, after hearing all Counsel’s submissions, I dismissed R2’s application.  I set out hereafter my reasons.

10.Mr Li has asked this Court to admit all three of R2’s affirmations and her Witness Statement and to give such weight as appropriate in due course.  Mr Chow and Mr Leung have, on the other hand, asked this Court to exclude all of them.

11.Mr Li has relied mainly on the House of Lord decision in Polanski v Conde Nast Publications Ltd (HL)[5]. The issue in that case was whether Mr Polanski should be allowed to give evidence in a libel claim by video conference link from abroad to avoid possible arrest and extradition if he were to go to England, as he was a fugitive from justice. He was so allowed and the Court of Appeal’s decision was overturned. 

12.The facts of that case were of course different, but Mr Li has referred to obiter comments made by Baroness Hale in the above case where Baroness Hale has said, among other things, that the substantive law on hearsay evidence following their Civil Evident Act 1995 is that relevant hearsay is always admissible; there are various procedural safeguards aimed at reducing the prejudice caused to an opposing party if he is not able to cross-examine the maker of the statement; but the principal safeguard is the reduced-even to vanishing-weight to be given to a statement which has not been made in court and subject to cross-examinations in the usual way, and the court is to be trusted to give the statement such weight as it is worth in all the circumstances of the case^[6].

13.Based on what Baroness Hale has said in the Polanski case, Mr Li has strongly urged this Court not to exclude the affirmations and Witness Statement of R2, and that in the end it would only be a matter of what weight this Court would attach to these affirmations, namely it would be open for this Court to attach no weight to them.

14.I accept that failure to attend for cross-examination does not in itself make such a statement inadmissible. S. 47(1) of our Evidence Ordinance has set out that:-

“In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless:-

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interest of justice.”

15.The above section is in fact different from s. 1(1) of the English Civil Evidence Act 1995 which simply states that “In civil proceedings evidence shall not be excluded in the ground that it is hearsay.”  There are no exceptions as in the Hong Kong provision.  Thus Mr Chow and Mr Leung have submitted that the Polanski case was decided on a different basis.

16.On the 1^st day, Mr Chow has referred this Court to the case of High Fashion Garments Co. Ltd v Ng Siu Tong [2003] 2 HKC 563 where Deputy High Court Judge Lam (as he then was) had to consider whether to order an important witness to attend court for cross examination and whether such cross examination could be done by video link.  In the end, he allowed the plaintiff in that case to read the affirmation of the witness as evidence at the trial on condition that the plaintiff was to procure the witness to attend cross examination by the defendants through video link.

17.Although the High Fashion case was before the Polanski case, in the High Fashion case, Lam J considered the effect of O. 38 r. 2  of RHC, and s. 47 of the Evidence Ordinance, and he had concluded that in the High Fashion case that the defendants were faced with a very serious allegation and that the evidence of the witness could have significant impact on the case, and thus, on balance, he ordered the affirmation of the witness could be read at the trial but only on condition that the witness was to attend cross examination through video link.

18.On the 2^nd day, Mr. Leung, Junior Counsel for the Wife, submitted further authorities. He has referred the Court to the case of Re Chow Kam Fai, ex p Rambas Marketing Co LLC[7], in relation to whether the debtor’s affidavits should be excluded at the hearing of the bankruptcy petition of the debtor if he failed to attend the hearing.  Rogers V-P had referred to the then Court of Appeal decision of the Polanski case[8]  and had said that although it could seem a draconian result that an affidavit should be excluded, it would be highly undesirable that if the debtor in that case refused to attend the cross-examination his affidavits could be used and read in Court.  Although Robers V-P said it must be appreciated that the making of the order for cross-examination and the refusal of the permission to use the video conference facilities for that purpose might ultimately result in the failure of the debtor’s challenge to the petition, in the circumstances of that case, he did not see that it was unjust to make the order that he did.[9]

19.The above case was before the House of Lords decision in the Polanski case. Mr Leung has also referred to a more recent case of Mahajan and HCL Technologies (Hong Kong) Ltd[10] where Rogers V-P then referred to the House of Lords decision in the Polanski case.  He upheld the trial judge’s refusal for the 3^rd defendant in that case to give evidence from India via video conferencing facilities.  Rogers V-P had referred to his own judgment in the above mentioned case of Re Chow Kam Fai, and said that he adhered to every word which he had said in his earlier judgment, notwithstanding what was said in the House of Lords in the Polanski case[11].

20.It is clear from the above decisions that each case must be decided on its own facts and circumstances.

21.In the present case, the Wife strongly objects to the affirmations of R2 be adduced without R2 attending court for cross examination, at least, through video link.

22.Mr Chow has listed a number of crucial issues in his written submissions which R2 can answer, including her purported ownership of a number of companies, her alleged beneficial ownership of the Estoril Court Flats and the Grand Panorama flat, other properties and exotic cars.  As I have said earlier, R2 is a significant and crucial witness and I would add a very important one in this case.

23.I note, in particular, that R2 was able to prepare and make two substantive affirmations, one 10 page long, and one 6 page long, all in one day, namely 8 October 2012, with over 100 pages of exhibits in total.

24.I further note that R2 has also made a number of  quite serious allegations against the Wife, including alleging that the Wife had  “twisted the story and falsely alleged” that the Husband was and is in control of a Panamanian company,  that R2 was told by the Husband  that the Wife had “stolen” some companies’ minutes, and that by late 2008, the Wife was already “planning the worst” against R2 and the Husband, and that the Wife will “try every trick” to get R2’s assets etc.

25.Some of the above allegations were made as late as Monday 8 October by R2, after Dr Tse’s 2^nd report the preceding Friday.

26.R2 has been described by Dr Tse as suffering from senility, old age and fragility and it appears to me that R2’s 3 affirmations and her Witness Statement, in particular the contents of the two recent ones do not seem to reflect such signs. 

27.What R2 has said in her affirmations are in substance supporting what the Husband himself has said in his affirmations.  The Wife’s case is diametrically opposed to that of the Husband and R2.  However, the application to join R2 was not made by the Husband.  Mrs Remedios, Counsel for the Husband, has made it clear that the Husband does not seek to call R2 as a witness nor does he wish to cross-examine her.  So far as the present application is concerned, the Husband’s position appears to be neutral, since there were no submissions made by Mrs Remedios in relation to R2’s present application.

28.R2 had in fact herself strongly objected to being joined as a party.  She took out a summons to discharge the joinder to cease being a party, which was dismissed on 10 August 2012, and then on 21 August 2012, R2 even applied for leave to appeal against the Order dismissing her disjoinder application.  She obviously did not wish to be involved.  The Husband has also said that R2 had expressly told him not to drag her into the divorce proceedings.  R2 has not even tried to appear through video link, which, as Mr Chow has submitted, can be set up at her home where she can be comfortable and easily attended by even Dr Tse or a nurse.

29.R2 is said to be in control of at least 19 companies, both Hong Kong and overseas and assets worth hundred millions of dollars.  As pointed out by Mr Chow, what she said in her affirmation and Witness Statement are diametrically opposite the Wife’s case, the credibility of what R2 has said will depend to a large extent on the Court’s view and observation of the demeanour of R2 when giving evidence.

30.Having considered the above and all the circumstances of this case, I am satisfied that the exclusion of all R2’s affirmations, including her Witness Statement, is not prejudicial to the interests of justice.

31.The above are the reasons why I dismissed R2’s Summons of 9 October 2012.  All affirmations made by R2 including her Witness Statement shall be excluded and they can only be read at trial on condition that R2 attends for cross-examination through video-link.  Costs Reserved.

Mr Enzo WH Chow, Mr Eric HK Leung, Mr Chan Hei Ching, instructed by C T Chan & Co, for the Petitioner

Mrs Lisa D’Almade Remedios & Mr Samuel Yip, instructed by Tso Au Yim & Yeung for the 1^st Respondent

Mr Li Chau Yuen SC, instructed by B C Chow & Co, for the 2^nd Respondent

Mr Adrian But, instructed by Simon C W Yung & Co, for the 3^rd Respondent

Mr Alexander Wong & Mr Leung Yiu Kwong, instructed by Lo Wong & Tsui, for the 4^th Respondent

Mr Robert Whitehead SC & Mr Robin D’Souza, instructed by Tam Pun & Yipp for the 5^th & 6^th Respondents

The 7^th Respondent was not represented and did not appear