Ngan in Leng and Others v. Chu Yuet Wah

HCA 388/2006

[2021] HKCFI 3916

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 388 OF 2006

____________________

____________________

________________

DECISION

________________

1.There is no merit in this eleventh hour application for the Plaintiffs’ witness, Mr Eric Lo, to give evidence via VCF at the trial of this action, which is to begin on 10 January 2021. It must be underlined that the lateness of this application has resulted in a 15 minute hearing this morning which is contested and attended by counsel on both sides. Bluntly, this is jumping the queue at the cost of other court users as well as imposing an unwarranted burden on the court.

2.As long ago as 4 September 2019, an order was made against any further interlocutory application without the leave of the court. The only purported explanation advanced for the lateness of this application is the suggestion that Mr Lo only indicated in early December this year his reluctance to attend the trial due to the need of quarantine upon his return to Macau.

3.I am unable to accept the purported explanation :

(1)  On the evidence, the need to quarantine must be known since March 2021;

(2)  An application was made in September 2021 by the Plaintiffs to have the evidence of the 1^st Plaintiff given via VCF. It was granted on 3 November 2021.  Hence, there was proper opportunity for this application to be made;

(3)  Mr Lo has agreed to be a witness in this case. There is no reason to believe he is not aware of the attendant obligations, the most elementary of which is to give evidence at the trial; (See Wang Rongan v Silver International Investment Ltd [2021] HKCFI 3198, §19);

(4)  There is no evidence that Mr Lo is liable to suffer undue hardship from the quarantine.

4.In the premises, on lateness alone, I decline to entertain this application.

5.For completeness and briefly, I am unable to accept the Plaintiffs’ submission that Mr Lo is not an important factual witness whose credibility is not going to be hotly contested. He was present at important negotiations which led to the Share Purchase Agreement. That Agreement is central to the dispute in this action. It is accepted by Mr Chen, who appears for the Plaintiffs, that Mr Lo will be put forward as a detached witness.

6.Neither can I accept that there is no prejudice to the Defendant if this application is granted. Justice must be seen to be done. The Defendant is entitled to think that the Plaintiffs’ application will deprive her of the opportunity to test the evidence of an important witness under the solemn atmosphere of the court.

7.Further, I agree with the observations of the court in Wah Lun International Development Ltd v Lau Chiu Shing [2020] HKCFI 2572, §18, that the court can only deal with an application as it stands notwithstanding the fluid state of the COVID-19 pandemic.

8.Finally, I remind myself of the principles set out in Re Nobility School Ltd [2020] HKCFI 891, §9. I do not believe that this application is grounded on sound reason.

9.I shall hear the parties on costs.

Mr David Chen, instructed by MinterEllison LLP, for the 1^st – 5^th Plaintiffs

Mr Robert Whitehead SC and Mr Vincent Chen, instructed by Lam & Co, for the Defendant