Kader Industrial Co Ltd v. Hop Shing Engineering & Construction Co Ltd

HCCT 73/2020

[2022] HKCFI 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTRUCTION AND ARBITRATION PROCEEDINGS

NO 73 OF 2020

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Before: Hon Mimmie Chan J in Chambers (Open to Public)

Date of Hearing: 1 March 2022

Date of Decision: 1 March 2022

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D E C I S I O N

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1.Having read and heard the parties’ submissions on the Plaintiff’s summons of 19 January 2022, I refuse the application for leave to file the witness statements of Lao Wai Keung and Boris Yung. I am not satisfied that they have any probative value to assist the Court’s determination of the disputed issue of the cause of the defects alleged to be existing and which are complained of by the Plaintiff.

2.The statement of Yung covers inadmissible evidence on his opinion as to the existence of so called “defects” on the existing top layer of the roof of the premises and of “leakage defects”. His statement is irrelevant and unnecessary in the absence of any admissible evidence as to the cause of the leakage, the cause of the appearance of blisters and why the surface of the roof was not smooth. As already explained in this Court’s earlier Decision of 13 November 2021, the timing of the inspections carried out by Yung cannot assist the Court’s determination on whether the Defendant’s work can be said to be defective or incomplete and to have caused the defects complained of. Calling Yung as a factual witness cannot resolve any of the issues identified in the Court’s earlier Decision and his proposed statement is not helpful to the Court, by way of inferences to be drawn, or otherwise.

3.The statement of Lao refers to the inadmissible expert report of Hong Kong Survey Limited. His own evidence is hearsay as he was not present at the time of the alleged inspections in March 2020 and April 2020 when the photographs were taken. This affects the probative value of his proposed evidence. Lau’s statement gives no assistance to the Court in the determination of the cause of the dripping water.

4.Since the photographs taken in April and June 2018 and June 2020 have been disclosed in the course of discovery, I will only permit Lao’s witness statement in terms of paragraphs 2 and 3 a and b of the draft, to commit the Plaintiff as to the provenance and use to be made of the photographs. The probative value of the photographs themselves, if any, can be debated at trial, and the question of whether the photographs themselves can assist the Court’s determination of the disputed issues can likewise be decided at trial. The survey report itself is inadmissible as expert evidence obtained without the leave of the court.

5.There has been no explanation for the delay in this application. The application relates to inadmissible evidence, or evidence of no probative value at all.  There is undoubtedly prejudice to the Defendant at this late stage with inevitable disruption to preparations for trial.

6.The costs of and incidental to the Plaintiff’s application are to be paid by the Plaintiff to the Defendant on indemnity basis, to be summarily assessed and payable forthwith. Parties are to file their respective costs breakdown and objections, if any, within 7 days.

Mr Ernest CY Ng and Mr Fergus Tam, instructed by HY Leung & Co LLP, for the plaintiff

Mr Mohammed Talib (Solicitor Advocate), instructed by Pinsent Masons, for the defendant