New Well Master Co Ltd (Formerly Known As Well Master Co Ltd) v. Tidjan Ananto

HCA 558/2015

[2020] HKCFI 2460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 558 OF 2015

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BETWEEN

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R U L I N G

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1.This is the Pre-trial Review of the trial of a claim by the Plaintiff (“P”) for a declaration that the defendant (“D”) held on trust for P the property at Flat B on 10/F & Parking Spaces Nos 15 & 16 on Lower Car Pork Floor, Victoria Heights, 43A Stubbs Road, Hong Kong (the “Property”).

2.The main issue of the trial is going to be whether the D has been holding the Property on trust for P (as P claims), or whether the Property was gifted by P to D back in November 1985 (as D claims).

3.On behalf of P, Mr George Lee, also known as Gunawan Gunadi, has filed 3 witness statements.  D has also filed 3 statements of his own.  Those 6 witness statements are the only witness statements that have have been filed.    

4.On 11 September 2020, D took out a summons for leave to file and serve the witness statement of Andreas Ananto (“AA” and the “proposed AA WS”) as per the draft attached.

5.The summons is supported by the affirmation of Mr To Leong Pong.  Mr To is the legal adviser of D in these proceedings.  Mr To produces a medical letter issued by Dr Yeremia Tatang dated 31 August 2020.

6.AA is the eldest son of D.  AA does not profess to have personal knowledge of most of the matters his father speaks to in his 3 statements. What he proposes to do is principally to tell the court what his father has allegedly told (or has not told) him, what he has allegedly read from the pleadings and witness statements filed, and certain understandings of his.  The penultimate paragraph of the proposed AA WS reads as follows:

“ 11. Since the initiation of these proceedings, I was the one who had assisted my father in preparing the materials to defend the case. I was the one responsible for translating the contents of all court documents of these proceedings to my father, including the Witness Statements and the pleadings. In the course of doing so, my father had already explained all the details in respect of these proceedings to me, including but not limited to the matters stated in his pleadings and the Witness Statements. I have also read and considered all the documents adduced by my father’s side. I crave leave to adopt the contents of the Amended Defence and Counterclaim and the Witness Statements as part of my evidence.”

7.The basis of the application, according to Ms Law, counsel for D, is that D’s health is failing.  She says:

(a)  at §15 of her written submissions, that:

“ At the moment, D only intents to call D … as the only witness. However, in light of D’s deteriorating health as explained in the medical letter attached to the proposed AA’s WS, should D be unable to give evidence at trial because of his failing health, D will call [AA] as the only witness.”

(b)  at §8 of her written reply, that:

“ It was made clear that if D is able to give evidence at trial, AA will not be called as a witness.”

8.What is unusual about the application is that the defence in fact has not decided whether D will or can be called, but seeks to file the proposed AA W/S now so that it may be relied upon on the eventuality that D is not called.

9.If D had been proven to be mentally incapacitated to be called, a whole set of different considerations would have applied.  Amongst others, D’s witness statements may be adduced as hearsay upon the proper procedure having been followed — see Lily Cheung v Cheung Wai Kwok [2014] 6 HKC 155 at §§55-67.

10.But D has not been so proven.  The medical letter is vague as to his mental state.  It does not even state when D was examined and how.  Dr Tatang says that:

“ I examined [D], 80 yo. He came to me with multiple conditions. I diagnosed him with dementia (vascular type dementia + possible normal pressure hydrocephalus), hypertension, lumbal canal stenosis and coronary artery disease. Due to this degenerative disease, he has several problems.

1. Short memory problems

2. Attention difficulties, so he can’t have a good conversation with other people.

3. Gait problems

4. Difficulty in maintaining the concentration.

Based on that, he cant do his usual job, including for business and legal purposes.  He needs a care and assistance for his daily life…”

11.The 4 named problems do not necessarily incapacitate a witness from being called.

12.In the premises, I accept Mr Lam’s submissions that the application is premature.

13.I dismiss D’s application.  On the other hand, should there be any change of circumstances relating to D’s mental state, it will be a matter for the defence to decide whether to come back to court for an appropriate order with the appropriate evidence.

Mr Justin Lam, instructed by Charles Wong & Co, for the Plaintiff

Ms Deanna Law, instructed by Alex To & Co. Solicitors, for the Defendant