Winpo Development Ltd v. Wong Kar Fu and Others

HCA 3541/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3541 OF 1993

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(By Original Writ)

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(By Order to carry on proceedings dated 17 January 2011)

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HCA 2228/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2228 OF 2011

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(By Order to carry on proceedings dated 1 November 2016)

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(Heard together)

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D E C I S I O N

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1.This is an application by the plaintiff for leave to appeal a decision made by the court during trial to admit into evidence a number of electronically generated electricity bills of some antiquity, which were sought to be produced by the defendants.

2.The plaintiff objected to the admission of the bills. 

3.Having considered submissions from both parties, the court concluded that the failure to make discovery of the bills at an earlier time had been a genuine oversight by those representing the defendant, and not the result of any conscious manoeuvring.

4.Further, that the bills were relevant to the issues before the court, and that any prejudice to the plaintiff was minimal. 

5.Further, that in exercising the discretion of the court, it was in the interests of the just resolution of the case that the bills be admitted.  The court reserved its position as to the weight it might in the event attach to these bills.  The facts of this case are set out in the court’s judgment dated 26 May 2017, and it is unnecessary to repeat the same here. 

6.The principles relating to the grant of leave to appeal and also the principles relating to the admission of new evidence are well-established, and are set out in counsel’s helpful written submissions, and again, I will not repeat the same. 

7.Today, Mr Chan SC representing the plaintiffs, whilst accepting that he faces a very high hurdle in appealing the exercise of discretion by a trial judge, nevertheless advances two grounds of appeal, upon which he seeks leave to proceed.

8.The first ground relates that the court was wrong to find that the admission of the electricity bills would cause no prejudice to the plaintiffs.  In support of this, Mr Chan submits that the defendant had made a number of late interlocutory applications, the cumulative effect of which had distracted Mr Chan’s team, and that this latest application caused further distraction which itself amounted to prejudice; furthermore, that the plaintiff had not had an opportunity to investigate the authenticity of the electricity bills, or to cross-examine the staff of the China Light and Power Company. 

9.The second ground relates to the decision to admit the electricity bills on the basis that it was outside the generous ambit with which a reasonable disagreement is possible.  The particulars of the second ground, whilst repeating the distraction point and the prejudice point found in ground one, also criticised the defendant’s conduct in making such late discovery.  Mr Chan says that as a matter of principle, post CJR, the admission of such evidence may only be made in an exceptional case, even if the prejudice caused is, indeed, minimal. 

10.As sometimes happens during a trial, documents come to light which should have been produced at an earlier time.  Once the court is sure that their exclusion was a matter of oversight, as opposed to any tactical manoeuvring, then the court has to consider the interests of the parties, whilst at the same time ensuring a just resolution of the case. Proportionality becomes important. 

11.As to the matter of principle raised by Mr Chan, in the instant case, this court had no hesitation in exercising its discretion to allow the admission of these electricity bills.  As noted, the bills were simply a number of electronically generated utility bills of some antiquity.  In my view, there was nothing dubious about their origin, and I could discern no real legitimate need to cross-examine the makers, even if they could be identified.  I note that the issue of electricity being supplied to the disputed land was raised in the pleadings as early as 2011, and a number of electricity bills were then produced by the defendants.  The issue of electricy supply was therefore no surprise to the plaintiffs. 

12.Mr Lam for the defendants has, in particular, stressed that all the electricity bills, both those produced at an earlier time and those produced during trial bear the same address.  The meter numbers at the address may have changed, but the address to which the electricity was supplied, as far as the electric company was concerned, had remained the same. 

13.I, with respect, reject Mr Chan’s complaints about being overly distracted by the defendants’ several late in the day applications.  In my view, Mr Chan was able to deal thoroughly with his objections to the discovery application relating to the electricity bills. 

14.As to the issue of prejudice, I do not think that there is any reasonable prospect of success, based upon prejudice to Mr Chan’s client.  The same matters that I have outlined in relation to the matter of principle raised by Mr Chan are also pertinent.  As noted, the disputed electricity bills were part of a series of electronically generated utility bills bearing the same address as the earlier bills that had been produced.  Their origin was in no way dubious, and given the age of the bills it is unlikely the makers could have been identified, and even if they were, there was in my view no legitimate need to cross-examine them.  The question of supply of electricity to the premises had been raised by the defendants at the earliest opportunity, and no surprise about this was occasioned to the plaintiffs.  It is also noteworthy that upon the court allowing the admission of this evidence, that Mr Chan made no application for an adjournment. 

15.As noted, the court, on admitting these electricity bills, reserved its position as to the weight to be attached to the same.  Whilst these bills were relevant and lent support to the defendants case, they were, in my view, not in any way determinative of the same.  Indeed, Mr Chan SC himself accepts that the newly admitted electricity bills were not, “bombshell evidence”.

16.In considering whether there is a reasonable prospect of success to the plaintiff’s appeal, I should add that given the weight of all the other evidence in this case, as set out in the judgment, that even had the court not admitted these electricity bills into evidence, the court would still have reached the same conclusions upon the merits of this case. 

17.The plaintiff’s application for leave to appeal is dismissed.

(Discussion re costs)

18.I have before me a statement of costs for summary assessment, in total a sum of $91,160.  In my view, these costs are perfectly reasonable for this type of application.  So I make an order that the costs be to the defendants, summarily assessed in total as $91,160, to be paid within 28 days.

(Discussion with counsel)

19.So the orders that I am making are as follows:

(1)  The plaintiff’s application for leave to appeal is dismissed;

(2)  Costs be to the 3^rd defendant in HCA 3541/1993 and the 1^st defendant in HCA 2228/2011, summarily assessed in the total sum of $91,160, to be paid within 28 days hereof. 

Mr Chan Chi-hung SC and Mr Liu Cheong-wang Jerome, instructed by Kao, Lee & Yip, for the plaintiffs (in both actions)/applicants

Mr Lam Chin-ching Gary, instructed by Haldanes, for the 3^rd defendant (in HCA 3541/1993) and the 1^st defendant (in HCA 2228/2011)/respondent