Read the full judgment text of HCA 263/2012 on BabelCite. This Court of First Instance judgment was delivered on 3 April 2018 before Lisa Wong J.
Civil procedure – evidence – admissibility of foreign criminal judgment – rule in Hollington v F Hewthorn & Co Ltd – whether factual findings of an earlier court are admissible in subsequent civil proceedings – whether reported statements of witnesses in an earlier judgment are admissible – hearsay in civil proceedings – abolition of rule against hearsay – Evidence Ordinance (Cap 8) s 62 and s 49 – plaintiff company claiming beneficial ownership of four landed properties acquired in the name of the 1st defendant, who was its shareholder and director from 15 October 1990 to 22 June 2009 – further claim that the 1st defendant held the shares in the plaintiff as trustee for a PRC state-owned enterprise (the Beijing Company) – Tanner Garden Property transferred from the plaintiff to the 1st defendant in 2004 for a stated consideration of $3,980,000 and from the 1st defendant to the 2nd defendant in 2007 for a stated consideration of $4,800,000, which the plaintiff alleges was either unpaid or at an undervalue and made to defeat its claim – 1st defendant imprisoned in the PRC since 29 August 2008 and serving a 15-year sentence imposed in 2010 for corruption offences relating to the properties of a separate company, Beijing Yong Da – whether 1st defendant's PRC conviction is relevant to issues in this action – whether 1st defendant likely to be released early through parole under article 81 of the PRC Criminal Law or through temporary service of sentence outside prison for medical treatment under article 254 of the PRC Criminal Procedure Law and the Provisions on Temporary Service of Sentences outside Prisons – whether trial of this action should be adjourned sine die pending the 1st defendant's release from prison – whether the 2nd defendant should be granted leave to re-amend his defence at a very late stage – whether leave to file a supplemental witness statement should be granted without sight of a draft – whether paragraphs 31 to 33 of Madam Lai's witness statement, which record the 1st defendant's PRC conviction and the PRC Court's disbelief of his defence, offend the rule in Hollington – court ruled that the rule in Hollington v F Hewthorn & Co Ltd is directed at preserving the trial judge's independent evaluation of evidence and does not extend to evidence referred to in an earlier judgment such as witness testimony, which is admissible subject to weight under s 49 of the Evidence Ordinance – court held that the PRC Judgment is admissible only for the statements or reported statements of factual evidence before the PRC Court that is relevant to the issues in this case, and would leave any editing exercise to be done by the trial judge – court held that paragraphs 31 to 33 of Madam Lai's witness statement should be expunged as they reflect the PRC Court's findings and assessment of credibility, but paragraphs 34 to 36 should be retained as they deal with the 承包協議 – court held that the application for adjournment should be dismissed because the 1st defendant had not applied for parole or medical release, no application for commutation had been made after he became eligible in February 2016, and no medical evidence had been adduced to support an application for temporary service of sentence outside prison – court was sceptical of the defendants' vague and inconsistent suggestions of early release based on 'unwritten rules' or 'state policy' – court held that the 2nd defendant should be granted leave to re-amend his defence because the issues raised (the beneficial ownership of Kingpower and the source of the Eternal Building Flats proceeds) had already been pleaded by the plaintiff in its amended reply – court declined to grant leave to file a supplemental witness statement in the absence of a draft – costs reserved to be dealt with on paper.
Legal issues: Admissibility of foreign criminal judgment under Hollington rule · Expunging parts of witness statement under Hollington rule · Adjournment of trial pending imprisoned defendant's release · Late application to re-amend defence · Leave to file supplemental witness statement without draft
Outcome: The PRC Judgment was admitted in evidence subject to a relevance and use limitation; paragraphs 31 to 33 of Madam Lai's witness statement were expunged; the application for adjournment of the trial was dismissed; the 2nd defendant was granted leave to re-amend his defence; no order was made on the 2nd defendant's application to file and serve a supplemental witness statement. Costs were reserved to be dealt with on paper.
Cited by 28 cases · Cites 3 cases