Cheung Hing v. Wah Fung Forest Resources Ltd

HCMP 3/2016

[2018] HKCFI 1655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3 OF 2016

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Before: Deputy High Court Judge Maurellet, SC in Court

Dates of Hearing: 4, 6 June 2018

Date of Decision: 4 June 2018

Date of Reasons for Decision: 6 June 2018

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R E A S O N S   F O R   D E C I S I O N

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1.On Monday, 4 June 2018, I set aside a writ of subpoena ad testificandum taken out by the defendant company against a Mr Chiang King Wai. The writ of subpoena was issued on 27 March 2018, but it would appear that it had only been served on Mr Chiang on Thursday, 31 May 2018 at 6 pm. This was one working day before the trial which commenced before me.

2.The applicable principles relating to such applications and their timing is set out conveniently in Hong Kong Civil Procedure 2018 Vol 1 at para 38/19/3.  The learned editors say:

“Any application to issue a subpoena should be disposed of before the pre-trial review. In the absence of good and strong reasons, a late application may be dismissed on the basis of delay alone. Such dismissal applies with even greater force when it is taken out in the course of the trial.”

3.The decision of Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (unrep, HCA 1957/2005, [2010] HKEC 149, 29 January 2010)is referred to in that passage.  In FBC Construction Co Ltd v Lee Ben [2014] 2 HKLRD 1054 at para 223, Madam Justice of Appeal Kwan, when dealing with the dismissal of an application for subpoena during a trial, had this to say at para 223:

“As the Judge had said in one of the applications of Wu Yi which he refused:

‘After the CJR, as well as before it, the parties are expected to carefully and thoroughly think through all the preparatory steps leading up to the trial, including the decision whether to subpoena an unwilling witness.  All interlocutory applications, including the one pertaining to a subpoena, should be disposed of before the pre-trial review. A late application may be dismissed on the basis of delay alone:  see para.34 of the Practice Direction 5.2 on Case Management.  Dismissing a late application for delay alone applies with even greater force when it is taken out in the course of the trial.  The applicant must justify the late application with good, strong reasons.’ ”

4.I note that in the timetabling questionnaire filed by the defendant on 12 January 2017, it had ticked the box confirming that there would be no further interlocutory applications.

5.I also note that in the opening filed by the defendant there was only a reference to the two witnesses who had filed witness statements and none to a subpoena.  I asked Mr Oh, counsel for the defendant, whether there were in fact any strong or good reasons.  He very fairly and properly replied that he had only been instructed as of late and there were otherwise no such reasons.

6.It is obvious that if one more witness were to be giving evidence in the way proposed there would be ramifications.  In the absence of any justification, I set aside the application for subpoena with costs to the plaintiff, to be taxed if not agreed.

The plaintiff appeared in person

Mr Nicholas Oh, instructed by W K To & Co, for the defendant