Huang Yu Hui v. Zheng Shizhi
Read the full judgment text of HCA 646/2015 on BabelCite. This High Court CFI judgment was delivered on 9 November 2021.
1. The Plaintiff is the purchaser and the Defendant is the vendor of the subject property under a sale and purchase agreement dated 29 January 2015 (“ SPA ”). The Plaintiff seeks specific performance of the SPA, alternatively for return of the deposit and damages to be assessed.
Cited by 5 cases · Cites 4 cases
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HCA 646/2015 [2021] HKCFI 3362 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 646 OF 2015 ____________ BETWEEN
____________ (By Original Action) AND BETWEEN
____________ (By Counterclaim) Before: Hon Au-Yeung J in Chambers Date of Hearing: 30 August 2021 Date of Decision: 9 November 2021 _____________ D E C I S I O N _____________ A. Introduction 1.The Plaintiff is the purchaser and the Defendant is the vendor of the subject property under a sale and purchase agreement dated 29 January 2015 (“SPA”). The Plaintiff seeks specific performance of the SPA, alternatively for return of the deposit and damages to be assessed. 2.The Defendant claims that the SPA was signed by him in Mainland China under duress, of which the Plaintiff had knowledge. The SPA was thus void. The deposit was passed on by his purported solicitors to the 2nd Defendant by counterclaim without the Defendant’s consent. The Defendant has never received the deposit. 3.The case has been set down for trial on 2-4 November 2022, with a pre-trial review on 8 June 2022. 4.The Defendant has been detained in Mainland China since 1 December 2016. Following conviction for fraud on 21 November 2019 by the Mainland Chinese Court, he is now serving life imprisonment in Jinjiang City (晉江). He lodged an appeal in December 2019, which has not yet been heard till this hearing, allegedly due to Covid-19. 5.There are 2 applications before the Court:
6.Eventually, the Plaintiff’s summons was not pursued. I therefore dismiss it with costs to the Defendant. 7.The Plaintiff opposes the Defendant’s summons on 2 broad grounds:
8.With leave of the Court, the parties have adduced expert evidence to answer 5 questions:
B. Legal principles 9.The starting point is that a witness should attend in person to give evidence. The onus lies on the applicant to demonstrate that the witness cannot reasonably be expected to come to Hong Kong. 10.Under Order 39, rule 1, Rules of the High Court, the Court has jurisdiction to order the issuance of an LR. The Court will exercise its discretion to do so if the recipient authority has an obligation or established practice of executing LRs: Kwan Chui Kwok Ying v Tao Wai Chun, CACV 194/2002, 13 December 2002, §22, Woo JA (as he then was). 11.In deciding whether to order the issuance of an LR, the Court takes into account 5 factors:
See Tang Yi v Edmond De Rothschild Asset Management Hong Kong Ltd [2018] HKCFI 1050, L Chan J; Delco Participation BV v HWH Holdings Ltd [2021] HKCFI 249, at §22, Coleman J. 12.“Necessary for the purposes of justice” in the first factor means the interests of all the parties to the litigation and not just the applicant: Delco Participation, at §§23 & 25-26. 13.The Court also has to be reasonably satisfied that the proposed exercise to be conducted in the foreign court would not be an exercise in futility: Delco Participation, at §58. 14.As between Mainland China and Hong Kong, issuance of an LR is governed by the Arrangement which came into force on 1 March 2017. The following articles are relevant:
C. Necessity of the Defendant’s evidence 15.The Defendant has only himself as a witness but cannot come to Hong Kong for trial. His evidence is crucial as the burden is on him to establish that he was under duress when he signed the SPA. His case is hotly contested by the Plaintiff. Full-fledged cross-examination of him is thus essential in the interests of justice. D. Delay 16.The Defendant has been detained since 1 December 2016. He was not convicted until 21 November 2019. He immediately lodged an appeal 12 days later on 2 December 2019. Application for hearing of the appeal was lodged in August 2020 but the appeal has not yet been heard due to the pandemic. On 14 February 2020, prior to the case management conference for this case, the Defendant has informed the Plaintiff about his conviction and his intention to apply for issuance of an LR. 17.Since 22 April 2020, the Defendant’s Mainland Chinese lawyer has been in contact with the Hong Kong lawyers on the possibility of using video conferences for the purpose of taking evidence. In August, the PRC lawyers attempted to contact the Defendant but in vain. On 6 December 2020, the Mainland Chinese lawyer said that he would ask the detention centre where the Defendant was detained about video conferencing but no news has been received from the PRC lawyer since then. 18.The Defendant’s efforts were bona fide. Although he should have applied to Court earlier for the issuance of an LR, I shall not hold the delay against him because there is still a year to go before trial. There ought to be sufficient time to arrange for the taking of evidence in the Mainland China, if this Court were to order the issuance of an LR. The Plaintiff does not allege that any delay has prejudiced him. E. Issue 1: Whether there is provision for the Mainland Chinese courts to take evidence from a prisoner in Mainland China 19.The experts are generally in common in their answers to questions 1, 3, 4 and 5:
20.The experts are also in common that for the purpose of giving/obtaining evidence, (i) the Defendant will not be allowed, even temporarily, to leave the prison and (ii) the Hong Kong judge, parties’ lawyers and the Plaintiff will unlikely be allowed to enter the prison:
21.Therefore, the process of obtaining evidence from the Defendant will likely be conducted by way of video conference. 22.Mr Shum, counsel for the Plaintiff, submits that even if the LR will be executed, there is no evidence as to the availability of video conferencing facilities in the prison in which the Defendant is remanded. 23.The evidence already shows the availability of video link facilities. I do not think it is necessary for the Defendant to go so far as to establish its availability in a particular prison. After all, if the Mainland Chinese courts cannot execute the LR due to this logistics issue, it is at liberty to return the request under Article 3 of the Arrangement. F. Issue 2: Whether cross-examination of a witness in the Mainland Chinese courts is within the scope of the Arrangement 24.The experts take different views as to whether it is permissible to conduct cross-examination of the Defendant under Articles 6 and 7 of the Arrangement beyond taking a statement from him (ie question 2). 25.Under Article 6 of the Arrangement, a distinction has to be made between who the requesting party is. If the requesting party is Hong Kong, only a statement can be taken from a witness; cross-examination is not provided for. If the requesting party is Mainland China, cross-examination is allowed. The difference in terminology, ie examination (訊問) and obtaining (“取得”) speaks for itself. 26.This interpretation of Article 6 is made even more apparent when compared to the parallel arrangement governing Mainland China and Macao, ie《關於内地與澳門特別行政區法院就民商事案件相互委托送達司法文書和調取證據的安排》(“Mainland-Macau Arrangement”), the amended version of which took effect on 1 March 2020.
27.The power to examine or cross-examine a witness in Mainland China exists under the Mainland-Macao Arrangement but not the Arrangement. According to the Defendant’s expert evidence, which I accept, Article 6 of the Arrangement provides for a unilateral way of taking evidence (“取得當事人的陳述及證人證言”) and not an interactive process (“互動的、動態的盤問/訊問程序”). 28.The Defendant has already prepared witness statements before he was jailed. What he applies for now is cross-examination, which does not fall within the scope of Article 6. 29.The Defendant’s expert, however, contends otherwise: 30.Firstly, he asserts that Article 6 of the Arrangement does not refer to “examination of witnesses” in the scope of assistance from the Mainland Chinese courts because of the different terminology used under Mainland law and Hong Kong law. He says that “statements from parties concerned” （當事人陳述）and “testimonies from witnesses” （證人證言）are one of 8 types of evidence under PRC law (A/217-8). 31.Without disrespect, the Arrangement is one negotiated between Mainland China and Hong Kong. The terminology in the Arrangement indicates that the draftsmen did not intend to introduce, wholesale, all types of evidence under Mainland law where Hong Kong is the requesting party. 32.Secondly, the Defendant’s expert says that the although there are no specific provisions for cross-examination under Mainland Chinese Court law, cross-examination could be achieved through a “confrontation” process (質證) under Mainland Chinese law. Under the confrontation process, the parties and their legal representatives can ask questions of a witness before evidence becomes admissible. The Defendant’s expert also cited the PRC Evidence Code (證據規定) which provides that the parties and their legal representatives can ask questions of witnesses upon approval of the Mainland Chinese courts and this is not disputed by the Plaintiff’s expert:
33.With respect, the Defendant’s expert himself made a distinction between cross-examination in general and examination in the confrontation process. It is plain that the confrontation process is for the limited purpose of establishing admissibility of evidence, whereas cross-examination under Hong Kong law is for much wider purposes of attacking credibility, establishing the truth of one’s case and destroying the truth of the opponent’s case. 34.Thirdly, the Defendant’s expert refers to the case of HKSAR v Hui Yat Sing (A/218-9) wherein the assistance of the Mainland Chinese courts was sought to cross-examine a witness. However, that was a criminal case not governed by the Arrangement. This has been confirmed by the opinion of the Plaintiff’s expert. 35.Fourthly, the Defendant’s expert suggests that even if the present request does not fall within the scope of assistance of Article 6, the Mainland Chinese courts may still, pursuant to Article 7, arrange for cross-examination, as this is not in breach of PRC law. 36.Mr Lai, counsel for the Defendant, submits that even if there is material difference between the confrontation process and cross-examination under Hong Kong law, it would not prevent the Court from issuing an LR. He relies on Delco Participation, §58, for the proposition that the important point is for there to be a fair and proper opportunity for the Plaintiff to cross-examine the Defendant:
37.With respect, that is putting the cart before the horse. Article 6 governs the scope of assistance. Article 7 governs the manner of giving assistance. If Article 6 is not invoked, the procedural provision of Article 7 simply does not come into play. Article 7 cannot be invoked to expand the scope of assistance. G. Conclusion 38.For the reasons given in Section F, the present request does not fall within the scope of Article 6. There is no reason to believe that the LR, even if issued, would likely be executed. Accordingly, the summons should be dismissed. H. Costs 39.Each party should bear the other party’s costs of its own summons. 40.The Plaintiff’s costs statement is a 13-page document which sets out the dates of all communication and time spent as if it were a taxation bill. This is wholly unnecessary and simply a waste of costs and the court’s time. Costs for preparation of such a costs-statement should, save for good cause shown, not be recoverable from the client. Costs of the 2nd expert opinion are also not recoverable since the Plaintiff’s summons has been dismissed. 41.Setting off the costs on each summons, I make a global order that the Defendant is to pay costs of $450,000 to the Plaintiff. 42.I make an order nisi in terms of paragraphs 39 and 41 above. I. A note on practice 43.For an application of a similar kind, it is always helpful to prepare a draft LR to be lodged with the written submission of the applicant. The draft should set out all the terms of request, including the mode of taking evidence (such as by video link, if permissible), and whether a Hong Kong trial judge, parties and legal representatives are to attend. If the request is made to the Mainland courts, the draft LR should be drafted in Chinese. 44.I thank counsel for their assistance.
Mr Erik Shum, instructed by Raymond Siu & Lawyers, for the Plaintiff (By Original Action) and the 1st Defendant (By Counterclaim) Mr Alex Y H Lai, instructed by Yung, Yu, Yuen & Co, for the Defendant (By Original Action) and the Plaintiff (By Counterclaim) | |||||||||||||||||||||||||||
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