Man’s (Asia) Development Ltd v. Fung Chi Kin

HCA 1279/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1279 OF 2013

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BETWEEN

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D E C I S I O N

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Supplemental Witness Statement

1.This last minute application to introduce a supplemental witness statement for the Plaintiff must be viewed in light of :

(1)   There was an unless order dated 4 February 2015 for the Plaintiff to exchange its witness statements by 6 February 2015;

(2)   In that same order, the time for the parties to take out interlocutory applications was extended to 25 March 2015.  Such application included the service of supplemental witness statements;

(3)   By an order dated 3 February 2016, the court granted leave to set down which required the Plaintiff to confirm with the listing clerk that there was no outstanding interlocutory applications pending;

(4)   At the PTR on 13 December 2016, the Plaintiff sought to ask for a blanket order for leave to file a supplemental witness statement.  That request was declined because, inter alia, it was a late stage to seek such leave, and the court had not been provided with any supplement witness statement;

(5)   This application was taken out on 6 March 2017. It is not supported by any affidavit which may seek to explain the extraordinary delay of the application.

2.Given the circumstances highlighted above and the absence of explanation, this application is as close to a conscious flouting of the rules as one can imagine.

3.Further, the absence of explanation means that there is little basis on which the court may exercise its discretion in favour of the Plaintiff.

4.For completeness, firstly, I do not believe that there is anything in the supplemental witness statement which could not have been put before the court in good time before this trial.  The revocation of the Defendant’s legal aid took place on 2 November 2016, and it was apparently done as a result of complaint initialled by the Plaintiff in July 2016.  The supplemental witness statement is nothing short of an attempt to improve the evidence of the Plaintiff in a wholesale manner.

5.Secondly, the suggestion of lack of prejudice to the Defendant cannot be taken seriously.  He is an unsophisticated elderly man.  There is not even a translation of the supplemental witness statement made available to him.

6.Finally, the rules and procedure developed and applied over the years are to ensure that justice is done to both sides to any dispute, and is arrived at fairly and in an orderly manner.  It sits ill in the mouth of those who flouted the rules to complain of injustice.

7.For these reasons, this application is dismissed with costs to the Defendant.

Expert Report

8.Much of what I have said about the rejection of the supplemental witness statement applies to this, again, eleventh hour application to adduce an expert valuation report on behalf of the Plaintiff.

9.At the PTR, the court did raise concern about the potential for introduction of expert evidence by the Plaintiff when the court was asked to give leave for the filing of a supplemental witness statement.  Despite the previous application, there is not one word of evidence before the court to explain why this valuation report is adduced at this late stage.  It is not even covered by a formal application, but has found its way into the hearing bundle. 

10.I do not believe that there is anything of critical importance in the valuation report.

11.The question of market rent in respect of the land in question only goes to the credibility of the Defendant’s case at most.  It must be borne in mind that it is common ground that the land had been rented by him for many years before the Plaintiff became the owner of it, and it is not necessarily the case that the Defendant was paying the market rent at the material times as opposed to paying a rent which, according to him, had been increased from time to time over his long tenancy. 

12.For these reasons, this application is also declined with costs to the Defendant.

Mr Hugh Kam, instructed by Au, Thong & Tsang, for the Plaintiff

The Defendant appeared in person