Bold Shine Investment Ltd v. Tsui Yee Kwan
Read the full judgment text of HCA 1867/1999 on BabelCite. This High Court CFI judgment was delivered on 5 July 2022.
1. This is the Plaintiff’s summons (“Summons”) for an application pursuant to Order 39, rule 2 of the Rules of the High Court, Cap. 4A dated 17 th of January 2022 so that:
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HCA 1867/1999 and HCA 1676/2011 [2022] HKCFI 1957 HCA 1867/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1867 OF 1999 _____________
AND HCA 1676/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1676 OF 2011 _____________
_____________ Before: Mr Recorder Maurellet SC in Chambers (Paper Disposal) Date of Written Submissions by the Defendant: 21st April 2022 and 18th May 2022 Date of Written Submissions by the Plaintiff: 10th May 2022 and 25th May 2022 Date of further statements on costs and agreed translation : 24th June 2022 Date of Decision : 5 July 2022 ____________________ DECISION ____________________ INTRODUCTION 1.This is the Plaintiff’s summons (“Summons”) for an application pursuant to Order 39, rule 2 of the Rules of the High Court, Cap. 4A dated 17th of January 2022 so that:
2.The Summons was directed to be determined on the papers by an Order of Au Yeung J. 3.It is pleaded in the statement of claim that Luo is a director and shareholder of the Plaintiff (to the tune of 45%). In so far as it is relevant, the Plaintiff in these proceedings seeks a declaration that a property situate in Argyle Street Kowloon is held by the Defendant upon trust for the Plaintiff, and that the Defendant is to account to the Plaintiff for all sums received by the Defendant for the rental of the said property. 4.As is apparent from the action number, these proceedings were commenced more than 10 years ago. The determination of the Summons will no doubt have an impact on the case management of these proceedings, as well as the mode and timing of the trial. 5.Although many authorities were cited and fairly lengthy submissions were lodged, having considered them, it seems to me that the dispute between the parties fell within a fairly narrow compass. THE ISSUES
6.The first issue is whether or not pursuant to the Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region (“Hong Kong SAR”), it is open to the Hong Kong SAR Courts through letters of request to request for certain witnesses to be examined and cross-examined (“the Arrangement”). What is meant by being cross-examined this specific context will be considered below in more detail. 7.This issue depends on the interpretation and understanding of the Arrangement. 8.The Arrangement was recently the subject of judicial consideration by Au Yeung J in Huang Yu Hui v Zheng Shi Zi [2021] HKCFI 3362. 9.The Plaintiff has also ‘adduced’ the opinion of Professor Zeng of the Sun Yat Sen University belatedly (on 11/4/2022). There are some arguments over it, not least because it was adduced late. 10.I have had regard to that evidence and will formally give leave to the Plaintiff to adduce the affirmation exhibiting it. However, for reasons which I explain below, I do not consider that it takes the Plaintiff’s case any further.
12.The second issue arises in this way. 13.Assuming that the Arrangement does not allow for cross-examination (either in the conventional sense as understood in Hong Kong SAR or only allows for a more limited or diluted form of cross-examination), should the Court nevertheless exercise its judicial discretion whether or not to grant the letter of request? 14.I understand from the submissions filed on behalf of the Plaintiff that it accepts that the unavailability of cross-examination in the sense conventionally understood in common law systems would be one factor relevant[3] (but on the Plaintiff’s case by no means a decisive factor) to the exercise of discretion. DISCUSSION Issue 1: does the Arrangement allow for fully-fledged cross-examination 15.The Arrangement (which I append its original version in the Chinese language to this judgment) provides in its recitals that in accordance with Article 95 of the Basic Law of the Hong Kong SAR of the People’s Republic of China and through consultation between the Supreme People’s Court and the Hong Kong SAR, the following arrangement is hereby made for the mutual taking of evidence and civil and commercial matters. 16.There is no doubt that the present proceedings fall within civil and commercial matters and the Defendant has not contended otherwise. 17.Article 6 is important and in my view, its wording and structure are fundamental to understanding what can and cannot be done. For reasons which are perfectly and immediately understandable, what can be requested in terms of the scope of assistance depends on whether the request is made by a People’s Court of the Mainland or a Hong Kong SAR Court:
18.It can immediately be seen from the difference in wordings between the two subsections of Article 6 that whilst a People’s Court can request the Hong Kong SAR Courts for the “examination of witnesses” under the Arrangement, no such provision exists for the Hong Kong SAR Courts to make a request to the People’s Court. 19.If examination of witnesses had been provided for under the Arrangement regardless of which party was the requester, there would have been no need for this dichotomy. 20.As explained above, whether or not cross-examination of a witness in the Mainland Chinese Courts is within the scope of the Arrangement is a matter which had already been considered by Au Yeung J in Huang Yu Hui (supra). 21.At paragraph 7(1) of that judgment, her Ladyship noted that the letter of request had been opposed on the basis that it would not be executed by the Mainland Chinese Courts as the examination of the defendant witness would fall outside the scope of the Arrangement. 22.Her Ladyship analysed this issue as follows at paragraphs 24-37. I set out in full as I believe it comprehensively deals with some (indeed most) of the points made by the Plaintiff in this application at least in so far as Issue 1 is concerned:
23.Huang Yu Hui (supra) is of course strictly speaking not binding on me. I however respectfully agree with her Ladyship’s analysis and do not consider that the submissions now made by the Plaintiff or the points made in the ‘opinion’ of Professor Zeng take the matter any further. 24.There is nothing of substance which suggests that the People’s Court would pursuant to the Arrangement agree for Mr Luo to be cross-examined in the sense conventionally understood in Hong Kong SAR. 25.As Sir Donald Nicholls observed in Panayiotou v Sony Music Entertainment (UK) Ltd [1994] Ch 142 at p 150F, “the English court would not normally embark on such a course unless there was reason to suppose the foreign court would be receptive to the request”. 26.The issue here is not whether cross-examination is generally available in the case of domestic litigation[4] in the Mainland Chinese Courts, but whether there is a basis for thinking that the People’s Court would be receptive to a request for cross-examination from the Hong Kong SAR Court. 27.Based on the Arrangement and on the evidence before me, I am not satisfied that there is sufficient reason to suppose that the People’s Court would be receptive to a request for cross-examination and therefore I find Issue 1 against the Plaintiff. 28.I therefore need to consider Issue 2.
29.Even if Luo cannot be cross-examined under the Arrangement, should he be ‘examined’ in chief[5] assuming that this is available under the Arrangement? 30.The Plaintiff’s fallback submissions, as contained in his Notes of Submissions, put it this way: “the fact that (assuming it is correct but Ps are not conceding it) the witnesses might not be cross-examined by Ds goes to the Court’s discretion and it does not go to jurisdiction”. 31.In so far as it goes, it seems to me that this submission is correct. The non-availability of fully-fledged cross-examination is one factor to consider and to be balanced against other ones in favour of making a letter of request. 32.It is accepted by the Plaintiff that where “the witness’s evidence merits fully fledged cross-examination yet such cross-examination will not be available if the matter proceeds by way of a letter of request, then this will weigh against the application” (the Conflict of Laws in Hong Kong 3rd ed, paragraph 11.060, citing Okura & Company [1977] HKLR 557, a decision of Commissioner Liu QC (as Liu J.A then was). 33.It is important to bear in mind, in particular by reference to judicial comity, that the Hong Kong SAR Court is not (and should not be) comparing the overall merits of its own judicial processes and procedures with that of other jurisdictions. 34.What the Hong Kong SAR Court, as the requesting Court, has to do is to ask itself whether the processes available in the requested Court (assuming it accedes to the letter of request) are such that it would facilitate a fair trial in Hong Kong SAR in any particular case or would otherwise be for the purposes of justice to do so. 35.Coleman J in Delco Participation B.V. v HWH Holdings Ltd[2021] HKCFI 249 summarised the relevant applicable principles on issuing letter of request at paragraphs 21-23, 25-28 as follows:
36.Louis Chan J in Tang Yi v Edmond de Rothschild [2018] HKCFI 1050 put it this way at paragraph 16:
37.As explained above, I accept that the unavailability of ‘fully-fledged’ cross-examination not to be fatal to the making of a letter of request (see International Justice Assistance by David McLean at p.79) 38.I also accept that in the present case (and this is not seriously opposed by the Defendant) that the evidence of Luo would be important to the Plaintiff’s case. I also accept that Luo, given his current incarceration, would not be able to come to Hong Kong SAR to give evidence. This is of course not the fault of the Plaintiff but neither is it the fault of the Defendant. 39.However, Luo has already filed a written witness statement. 40.What I have to compare from the perspective of the trial is (1) the Court can look at and submissions will be made on the weight to be given to the statement of Luo and (2) Luo can be examined-in-chief or perhaps orally confirm or swear that the contents of this witness statements are true but cannot be cross-examined. 41.Is it better from the perspective of the trial and the trial Judge if Luo can be examined-in-chief but in substance not be cross-examined, than if only his witness statement is produced? 42.In the present circumstances, I am unable to see how the parties and indeed the Court would be in a more advantageous position to assess Luo’s evidence (if it is to be given in chief) as opposed to considering his statement as a hearsay statement on the basis that he was unable rather than unwilling to make himself available for cross-examination. 43.In any event, in the post civil justice reforms era, it is quite unusual for the Court to allow substantial (if at all any) examination-in-chief. In the premises, from a point of view of a fair trial or looking at the purposes of justice, I do not think it has been demonstrated that an examination-in-chief without fully-fledged[6] cross-examination would be necessary, let alone desirable. 44.Therefore, it does not seem to me that the letter of request (if in reality sought for the purpose of examination-in-chief rather than for cross-examination as understood in our system) would either be in the interests of justice, let alone being necessary in the interest of justice. OTHER MATTERS 45.Given my conclusions above, it is unnecessary to consider another ground relied upon by the Defendant to resist this application, namely delay. 46.While the Plaintiff has skilfully tried to explain away the delay, I am of the view that there was delay (at least from the date of the filing of the witness statement of Luo until the filing of the Summons). 47.However, had I considered that the letter of request was otherwise necessary for the purposes of justice, I would have been prepared to accede the Summons, albeit the inexcusable delay would be a factor I would have considered relevant to the issue of costs. DISPOSAL 48.For these reasons, I would dismiss the Summons as well as the summons seeking retrospective leave to file evidence dated 12th April 2022. It seems to me plain that costs follow the event, and the Plaintiff will bear the costs of this Summons to be taxed summarily on a gross sum basis. I will thus make the costs order on a nisi basis. The parties have submitted gross sum assessment schedules. If no application is made within 14 days to vary the costs order I will assess the costs on a gross sum basis. 49.It remains for me to thank the parties’ respective counsel team for their able assistance.
Mr Benjamin Chain and Mr Tony HH Chow, instructed by C.L. Chow & Macksion Chan, solicitors for the plaintiff Mr Damian Wong, instructed by Chan, Lau & Wai, solicitors for the defendant Annexure
[1] In fairness, the Plaintiff’s counsel recognised that “the expert evidence is at best peripheral” (paragraph 36 of Skeleton Submissions for the Plaintiff dated 10th May 2022). [2] Even if an expert opinion without an expert declaration is strictly speaking admissible (see Re A Civil Matter pending in the US District Court (Letter of Request) (No 2) [2021] 1 HKC 65 at paragraphs 60-73), there is no reason why the absence of such a declaration could not be one factor to consider when assessing that evidence. [3] See paragraphs 19-21 of Skeleton Submissions for the Plaintiff dated 10th May 2022. [4] Nor is this Court concerned with whether a request from another Court (e.g the Macau SAR Courts which have a different arrangement) would lead to a person being cross-examined pursuant to a request of the Macau SAR Courts. [5] Or at most with limited cross-examination. [6] The Plaintiff submits that if there is viva voce evidence (see paragraph 24 of their submissions dated 25th May 2022), “Ds will have an opportunity to test such evidence by some means, maybe even fully-fledged cross examination”. Short of fully-fledged cross-examination (which would be entirely speculative on the evidence before this Court) in a case such as the present, the Plaintiff cannot show how anything less (and if so what) would be of value to the process of assessing the evidence. | ||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 1867/1999