Yau Yam Sui v. Yau So Ching and Another

HCA 2466/2017

[2020] HKCFI 2609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2466 OF 2017

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BETWEEN

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D E C I S I O N

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1.I have three applications before me. One is an application by the plaintiff to put in further documents and a supplemental list of documents (the document summons). The other two summonses are issued by the plaintiff to file and serve a new witness statement of the sister of the plaintiff and issued by the defendant to file and serve three new witness statements from three other siblings.

2.Insofar as the document summons is concerned, although the documents were produced late, they were plainly relevant to the issues before the court.  The plaintiff’s side has explained, in particular, through his solicitors’ affirmation the reason for the lateness.  It was the solicitors’ side who had overlooked that the wife of the plaintiff had produced some documents to the plaintiff’s solicitors back in 2017. 

3.I do not think the plaintiff’s side should be punished for the oversight of the solicitors in not disclosing these documents and overlooking them.  The solicitors have explained in the affirmation what happened in relation to these documents. 

4.The documents now to be produced are limited in number but quite relevant to the plaintiff’s case on their face.  I do not think the late production will cause real prejudice to the defendants’ side as many of these documents such as solicitors’ bill, bank records, utility bills and formal documents can hardly be disputed as a matter of authenticity, and I do not think it will add to the burden of the defendants in preparing their case for trial.  I give leave to the plaintiff to adduce these new documents. 

5.In addition, there is an affirmation from the wife of the plaintiff, Madam Ng, to explain what the documents intend to show. I consider it appropriate to give leave to the plaintiff to adduce that affirmation as part of the evidence at trial.  Madam Ng will be a witness for the plaintiff anyway.  No prejudice will be caused to the defendants as they can cross-examine Madam Ng on those documents.  I therefore give leave to the plaintiff to file and serve the supplemental list of documents. 

Plaintiff’s summons to adduce a new witness statement

6.This is a witness statement of the eldest sister who purports to support the plaintiff’s case that he was the one who provided the mortgage monies for the property known as Flat 16F and the absence of the so-called 1990 oral agreement. 

7.The court balances the need to reach a just resolution of disputes and proper case management to prevent last-minute surprises by the appearance of new witnesses. 

8.In the present case, the eldest sister’s witness statement does not raise new issues.  It is a very simple witness statement. It is unlikely to add to the length of the trial.  There is no suggestion that the plaintiff has violated any court-imposed case-management directions or exhibited bad faith in withholding this witness statement until the last minute.  It has been explained that the plaintiff has all along wanted this eldest sister to give evidence.  She was not willing but then had a last-minute change of mind which was something beyond the control of the plaintiff.  I do not think the admission of this witness statement will cause prejudice to any party or disturb the trial timetable. 

9.Exercising a balance between reaching a just resolution, avoiding prejudice to parties and dealing with the case expeditiously and proportionately, I grant leave to adduce this witness statement.

Summons by the Defendant to file three additional witness statements

10.These three new witnesses are siblings of the plaintiff and the defendants.  The witness statements of these three new witnesses are simple.  They merely state that they have read the witness statement of one of the defendants, Yau Yam-sing, and agreed to its contents. 

11.One new witness, Yau Lan-chu, says that she has read the defence and counterclaim and supports the defendants in defending the present proceedings.  She is in Australia and is unable to come to Hong Kong due to the lockdown measure of the Australian government. 

12.The defendants have indicated that they had no objection to the plaintiff’s application to file the new witness statement subject to the plaintiff agreeing to the defendants filing these three new witness statements.  The plaintiff’s solicitors agreed in correspondence to this approach.  With the greatest respect, the court is not bound by the solicitors’ consent. 

13.The defendants’ three new statements are, without disrespect, hollow as they merely supported the statement of the existing defendants’ witnesses without setting out independently their side of the facts.  In addition, Yau Lan-chu is not in Hong Kong and cannot be cross-examined.  As a general rule in civil proceedings, if the witness cannot be cross-examined, the witness statement or affirmation will not be adduced as part of the evidence for the trial. 

14.Insofar as the defendants suggest that their application is prompted by the plaintiff’s application to file the eldest sister’s witness statement, I take this opportunity to state that this tit-for-tat approach in civil proceedings is unhelpful, as Ms Lok submits. 

15.The defendants’ case is already supported by two witnesses.  As a matter of case management, the court does not need a third and fourth witness to purportedly state and blindly adopt the statement of one of the existing witnesses.  In the premises, I dismiss the defendants’ application to file these further witness statements from three new witnesses. 

(Discussion re costs)

16.I make an order accordingly that there be no order as to costs for all the summonses. 

Ms Frances Lok, instructed by Arthur Au & Co, for the plaintiff

Mr Billy N P Ma, instructed by T C Lau & Co, for the defendants