Heraeus Ltd v. Chan Yun Mui and Another

HCA 878/2011

[2021] HKCFI 1849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 878 OF 2011

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Before:  Hon K Yeung J in Chambers

Date of Hearing: 16 June 2021

Date of Decision:  16 June 2021

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DECISION

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The application

1.This is the hearing of the summons of 31 May 2021 taken out by the plaintiff (“P”) for leave to allow P’s witness Mr Kupka Uve to give evidence by way of video conferencing facilities (“VCF”) at the trial scheduled to commence on 13 July 2021 (with 8 days reserved).

2.Mr Vincent Chiu appeared of P.  Ms Lorinda Lau appeared for the 1^st defendant (“D1”).  Mr Forest Fong appeared for the 2^nd defendant (“D2”).

The applicable principles on leave to give evidence by VCF

3.The applicable principles on applications of the present nature have been considered and summarized by Anthony Chan J at §9 of Re Nobility School Ltd[2020] HKCFI 891 (20 May 2020).  Lam VP in Standard Chartered Bank (Hong Kong) Ltd v Lau Lai Wendy [2021] HKCA 380 (25 March 2021) described them as “established”.  At §22 of that decision, Lam VP further observed that:

“ Notwithstanding the COVID‑19 pandemic, as far as the situations in Hong Kong are concerned, the taking of viva voce evidence in person (both in civil and criminal trials) remains the usual norm here.”

The evidence

4.P’s application is originally supported by Mr Kupka’s unsigned 4^th affirmation (“KU#4”) exhibited by Mr Lam Yiu Cheong in his affirmation.  Despite objections, I am prepared to consider the contents of KU#4, which has since been signed.

5.Mr Kupka is currently the President and CEO of Heraeus Precious Metals North America LLC, an associated company of P.  He is based in New York.  He oversees the operation of the North America market and liaises with P’s headquarters and other regions from time to time.  The basis of P’s application is that Mr Kupka will be subject to quarantine if he is to attend Hong Kong to give evidence.  That would “certainly jeopardize” his work, and that “it would not be practical for [him] to be away for almost a month”.

Parties’ stances

6.Mr Chiu accepts that mere inconvenience arising from the quarantine requirements by itself is ordinarily insufficient for the Court to order evidence to be given via VCF.  He however submits that P’s application should be granted because “Mr Kupka’s evidence is peripheral and does not involve issues of his credibility”.

7.Both Ms Lau and Mr Fong resist the application.  They submit that the application is made late, that no sound reason has been made out in support, and that Mr Kupka’s anticipated evidence is not peripheral.

Discussion

8.The application was made late.  During the PTR held before Au‑Yeung J on 9 March 2021, Counsel for P flagged up the possibility of applying for leave to permit Mr Kupka to give evidence by VCF.  As a result, Au‑Yeung J directed that any such application should be made on or before 31 May 2021.  As it turned out, the application was only lodged on 31 May 2021, and set down to be heard on 2 July 2021.  Noting the situation, this Court took the initiative of moving the hearing forward to 16 June 2021. 

9.No explanation has been given as to why the application was only taken out on 31 May 2021.

10.It should be noted that concern over health risk associated with travelling is not a ground put forward in support.  According to Mr Lam Yiu Cheong, Mr Kupka has been travelling within the US.  According to Mr Lam Yiu Cheong’s 2^nd affirmation, Mr Kupka has recently travelled to Germany.  The sole reason relied upon in support of the application is that going through quarantine would jeopardize Mr Kupka’s work.

11.That reason by itself is hardly sufficient to displace the usual norm in Hong Kong that evidence should be taken viva voce in person.

12.Mr Chiu submits that this Court should nonetheless exercise its discretion in favor of granting the application as “Mr Kupka’s evidence is peripheral and does not involve issues of his credibility”.  He submits that Mr Kupka’s witness statements are mostly pertained to “background matters”, such as the “history and reputation of P as a company”, “P’s company policies and practices”, and “the inability of P in locating Mr Francis Chan who left P’s employ in August 2005”.

13.To decide whether Mr Kupka’s evidence is peripheral involves some consideration of parties’ respective cases and the nature of Mr Kupka’s anticipated evidence.

14.P is suing Ds on 2 written guarantees.

15.D1 claims that she is not liable under the guarantee due to the existence of an oral collateral agreement limiting the extent of the guarantee, and/or that there was oral misrepresentation to that effect, and/or that P is estopped from contradicting the representation that has been made to D1.  Her case is that all those flow from certain oral discussions she has had with a director of P called Mr Ho Kin Chung (“Mr Ho”).

16.D2 also claims that he is not liable under the guarantee.  He says that he does not recall having signed the same.  Alternatively, he relies on the doctrine of non est factum, misrepresentation, non‑disclosure, and that his liability is only limited to certain excess.  D2’s case is that the above flow from certain direct or indirect dealings he has had with D1, Eric Chu and Mr Francis Chan.  D1 is D2’s wife.  Eric Chu is their son.  Mr Francis Chan was P’s accounting manager.

17.It is true that neither D1 nor D2 claims to have had any direct dealings with Mr Kupka.  However, the contents of Mr Kupka’s witness statements go well beyond what Mr Chiu submits they are pertained to:

(a)  Mr Kupka has made 3 witness statements;

(b)  In his 1^st witness statement:

(i)  at §8, he claims that he personally oversaw the relevant negotiation and preparation of legal documents, and that:

“ To my knowledge, Mr Ho never made any representations to D1 and D2 as alleged by D1 and D2. And given my close personal involvement in the transaction, it is highly unlikely that Mr Ho would have been able to make any representation without my knowledge”;

(ii)  at §10, he claims that:

“ During the negotiations of each of those personal guarantees, to my knowledge, D1 and D1 [sic.] were not only fully aware of the relevant terms, they were highly sophisticated, savvy and experienced businesspersons who negotiated with enviable expertise.”

(c)  In his 2^nd witness statement, he claims:

“ 4. As far as I can remember, [P] had never provided or promised to provide [D2] with any guarantee written in Chinese and/or any Chinese translation of any guarantee as alleged or at all.

…

8.  … Francis Chan had not reported to me as to the 2 requests of [D1] and [D2] (i.e. to have a Chinese version and to sign the Guarantee at HL’s office) ...”

(d)  In his 3^rd witness statement, he claims at §4 that:

“ … [Francis Chan] was required to report to us closely on all matters. I did not recall Francis Chan had ever reported to us of making any sort of representations to [D2] as alleged. The alleged representation allegedly made by Mr Francis Chan was something which he could not be authorised by [P] to make.”

18.Mr Kupka’s anticipated evidence in fact seeks to tackle substantive issues raised by the defences. They are matters in dispute.  They are hardly “technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence” — see Re Nobility School Ltd §9(5).

19.For the above reasons, I refuse P’s application.

20.I order that the costs of the application be borne by P, with certificate for counsel to both D1 and D2.

Mr Vincent Chiu, instructed by Lam, Lee & Lai, for the Plaintiff

Ms Lorinda Lau, instructed by Yung, Yu, Yuen & Co, for the 1^st Defendant

Mr Forest Fong, instructed by David Fong & Co, for the 2^nd Defendant