Pt Tugu Pratama Indonesia v. Citibank N.A

HCCL 1/2007

[2018] HKCFI 1789

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 1 OF 2007

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Before:  Hon Anthony Chan J in Chambers

Date of Hearing:  27 July 2018

Date of Decision:  27 July 2018

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D E C I S I O N

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1.The 10-day trial of this action is to begin next month on the 29^th. This is therefore a very late application by the Plaintiff to adduce the evidence of an additional factual witness, Mr Burton.

2.By Mr Burton’s evidence, it is said that evidence of prevailing banking practice will be put before the court at the trial.  There is a complaint by the Defendant that such evidence constitutes an attempt by the Plaintiff to introduce expert evidence at the 11^th hour.  The repackaging of Mr Burton’s evidence in the form of a witness statement is to overcome the obvious difficulty of adducing expert evidence so close to the trial, says the Defendant.

3.I am inclined to agree with the Defendant that it can be seen that various parts of the draft witness statement of Mr Burton contain an expression of opinion, eg, paras 22, 24 and 26.

4.Further, the evidence of Mr Burton involves the presentation and emphasis of various extracts of banking material.  I do not believe that evidence of such nature can be regarded as simply factual evidence.  The presentation would have involved certain knowledge and/or experience in banking and the exercise of judgment in the selection of material.

5.The authority of Re Jinro (HK) International Ltd [2002] 4 HKC 90, which is relied upon by the Plaintiff, is distinguishable from the present case.  It was a case where the evidence of a factual witness covered certain descriptions of a complex clearing system based on his experience.  It is not an authority in support of the present case where it is proposed that Mr Burton, with no personal knowledge or involvement in this case, will give evidence of nothing but banking practice based on his experience.

6.In my view, there is a fundamental problem with this application, namely, if Mr Burton’s evidence is merely that of putting together the relevant materials which may shed light on the prevailing banking practice, such evidence is of little probative value or relevance and therefore inadmissible. The reason being that those materials speak for themselves, and the Plaintiff will be entitled to cross-examine the Defendant’s witnesses on the same.

7.I am satisfied that allowing this late application would result in prejudice to the Defendant in that it is entitled to respond to the additional evidence with its own.  Given the difficulties in identifying a suitable witness who can speak to the banking practice back in the 1990s, there is a real danger that the trial will have to be adjourned.  This action was started in 2007, any further delay in the resolution of this action is a prejudice which cannot be compensated with costs.

8.For completeness, although it is unnecessary to deal with all of the 5 grounds of objection set out in the Defendant’s skeleton submissions, I find considerable force in each of them.

9.In the premises, I decline this application and I shall hear the parties on costs.

Mr Tom Ng, instructed by Holman Fenwick Willan, for the Plaintiff

Mr John Scott SC and Mr John Hui, instructed by Clifford Chance, for the Defendant