Bold Shine Investment Ltd v. Zheng Deli also known as Cheang Lei and Cheang Tak Lei

CAMP 411/2022 &
CAMP 412/2022
[2023] HKCA 73

CAMP 411/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 411 OF 2022

(ON AN INTENDED APPEAL FROM HCA NO 1676 OF 2011)

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AND

CAMP 412/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 412 OF 2022

(ON AN INTENDED APPEAL FROM HCA NO 1867 OF 1999)

________________________

________________________

(Heard together)

Before:  Hon Au and Chow JJA in Court

Dates of Written Submissions:  6 & 20 October 2022

Date of Judgment:  27 January 2023

________________

J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.These are the Plaintiff’s renewed applications for leave to appeal against two orders made by Mr Recorder Maurellet, SC dated 5 July 2022 in HCA 1867/1999 and HCA 1676/2011 (“the 1^st Action” and “the 2^nd Action” respectively, and “the Actions” collectively) dismissing the Plaintiff’s applications for the issuance of a letter of request in each action to the proper judicial authority of the PRC for the examination of Luo Bing Kun (“Luo”), the Plaintiff’s factual witnesses, on the Plaintiff’s behalf at the Qingyuan Prison and/or any designated place(s) in Guangdong Province, PRC.

2.Having considered the Plaintiff’s Statements in Support for Leave to Appeal dated 6 October 2022 and the respective Defendants’ Statements in Opposition dated 20 October 2022, as well as the papers before us (including the evidence filed in support of/in opposition to the applications which we have obtained from the court files below), we consider it appropriate to determine the leave applications on the basis of written submissions only without an oral hearing pursuant to Order 59, rule 2A(5)(a) of the Rules of the High Court, Cap 4A.

BASIC FACTS

3.The Plaintiff is a company incorporated in Hong Kong on 2 April 1992. Luo and Zheng Deli (“Zheng”) were at all material times each a director and shareholder of the Plaintiff.

4.Tsui Yee Kwan (“Tsui”) is the wife of Zheng.

5.The Plaintiff claims to be the beneficial owner of the following properties, namely:

(1)  Flat D on 6/F, Richland House, 77B and 77C Waterloo Road, Kowloon, Hong Kong (“the Waterloo Road Property”) purchased in the name of Tsui with funds provided by the Plaintiff in 1994; and

(2)  Flat D on 7/F and Car Park No 9 on G/F of Block 3, Mandarin Court, 142-144 Argyle Street, Kowloon, Hong Kong (“the Argyle Street Property”) purchased in the name of Zheng with funds provided by the Plaintiff in 1992,

and that Tsui and Zheng hold the Waterloo Road Property and Argyle Street Property respectively upon a resulting trust for the Plaintiff.

6.By the Actions, the Plaintiff seek to recover the Waterloo Road Property and Argyle Street Property from Tsui and Zheng.

7.In her defence filed in the 1^st Action, Tsui alleged, inter alia, that she had made a loan of HK$3 million to the Plaintiff in 1995, and there was an agreement that although the Plaintiff had made all relevant payments out of its account for the purchase of the Waterloo Road Property, she would be entitled to hold that property as security until such time as the loan and interest thereon had been repaid in full by the Plaintiff.

8.In his defence filed in the 2^nd Action, Zheng denies that the purchase price of the Argyle Street Property was paid with funds beneficially owned by the Plaintiff, and contends that he used his own funds to purchase that property.

9.Apart from issues concerning the funding for the purchase and the beneficial ownership of the 2 properties, there are also raised on the pleadings in the Actions issues relating to the background to the incorporation of the Plaintiff, the beneficial ownership of its shares, the subsequent management of the Plaintiff, as well as the allotment of additional shares in 1998, appointment of an additional director in 2000, and removal of Zheng as a director in 2002 of the Plaintiff, the details of which it is not necessary to set out in this judgment.

10.One of the witnesses from whom the Plaintiff intends to adduce evidence at the trial is Luo, whom the Plaintiff says “possesses first-hand personal knowledge as to what had happened at all the material times of the disputes”, and whose evidence, if preferred to that of Zheng, “will have significant implication on the outcome of the Actions”[1]. It is not in dispute that Luo is an important witness in the present case. He has already made witnesses statement(s) to counter the evidence of Zheng. The Plaintiff wishes to call Luo to give oral evidence at the trial. However, Luo is currently serving a substantial prison sentence at the Qingyuan Prison in the Mainland, and is thus unable to physically attend the trial of the Actions in Hong Kong to give evidence for the Plaintiff.

11.On 17 January 2022, the Plaintiff took out 2 summonses, one in each action, for the issuance of a letter of request to the proper judicial authority of the PRC for the “examination” of Luo at the Qingyuan Prison and/or any designated place(s) in Guangdong Province, PRC, 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 signed on 29 December 2016 (“the Arrangement”)[2] under Order 39, rule 2 of the Rules of the High Court (“the Order 39 Applications”).

12.As can be seen from the affirmation of Cheng Siu Hang, a solicitor of C L Chow & Macksion Chan, filed on 1 March 2022 in the 1^st Action[3] in support of the applications, the sort of “examination” of Luo intended by the Plaintiff to be conducted in the Mainland was the traditional, “full-fledged”, form of cross-examination normally employed in the judicial process in Hong Kong. At §10 of that affirmation, Cheng stated as follows:

“Should the Application be granted, Luo would be given the opportunity to testify and be cross-examined at substantive trial … The decision of the Court to prefer the evidence of Luo or that of Zheng will have significant implication on the outcome of the Actions. It is therefore appropriate to have a full-fledged cross-examination of Luo (as well as the Defendants).” [emphasis added]

13.Tsui and Zheng objected to the Order 39 Applications on 2 grounds:

(1)  delay; and

(2)  under the Arrangement, if the requesting party was the Hong Kong court, cross-examination of witnesses (in the sense conventionally understood in Hong Kong) was not allowed or provided for.

THE DECISION

14.The Order 39 Applications were dealt with by the Recorder on paper. In his written decision handed down on 5 July 2022 (“the Decision”), the Recorder considered that there were two substantive issues to be determined, namely:

(1)  was cross-examination (or full-fledged cross-examination) covered by the Arrangement when the requesting party was the Hong Kong court (“Issue 1”); and

(2)  should a letter of request be issued if the Arrangement only allowed for examination-in-chief, but did not allow for cross-examination (in the conventional sense as understood in Hong Kong) or only allowed for a more limited or diluted form of cross-examination (“Issue 2”).

He found both issues against the Plaintiff.

15.In respect of Issue 1, the Recorder agreed with the analysis of Au-Yeung J in Huang Yu Hui v Zheng Shizhi [2021] HKCFI 3362, and held that under the Arrangement, where the requesting party was the Hong Kong court, cross-examination in the sense as conventionally understood in Hong Kong would be outside its scope. The Recorder further took the view that there was no sufficient reason to suppose that the Mainland court would be receptive to a request for cross-examination from the Hong Kong court (§§24 & 27 of the Decision).

16.In respect of Issue 2, the Recorder accepted that the unavailability of fully-fledged cross-examination was not fatal to the issuance of a letter of request, but was only one factor to consider and to be balanced against others in favour of issuing a letter of request. Nevertheless, 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 Recorder considered that what he had to compare from the perspective of the trial was “(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 [statement] are true but cannot be cross-examined”. The Recorder did not consider that the parties and indeed the Court would be in a more advantageous position to assess Luo’s evidence (if it was to be given in chief only) 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. He took the view that it had not been demonstrated that an examination-in-chief without fully-fledged cross-examination would be necessary, let alone desirable. The Recorder was also not satisfied 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 be in the interests of justice, let alone being necessary in the interests of justice (§§30-32, 42 & 44 of the Decision).

17.In relation to the issue of delay, the Recorder considered that there was delay on the Plaintiff’s part in making the Order 39 Applications. Nevertheless, had he considered the letter of request was necessary for the purpose of justice, he would have been prepared to accede to the applications notwithstanding the Plaintiff’s delay (§§45-47 of the Decision).

THE APPEAL

18.The Plaintiff was not satisfied with the Decision, and sought leave to appeal from the Recorder. On 22 September 2022, the Recorder gave a decision refusing to grant leave to appeal, holding that the Plaintiff’s intended appeal was not reasonably arguable, and there was no other reason in the interests of justice why the appeal should be heard ([2022] HKCFI 2764).

19.By summonses dated 6 October 2022 (“the Summonses”) filed in the Court of Appeal, the Plaintiff renewed the applications for leave to appeal. 4 proposed grounds of appeal have been raised by the Plaintiff:

(1)  The Recorder erred in failing to, sufficiently or at all, distinguish between and/or address the difference, and hence the effect of, no cross examination and no full-fledged cross examination, on an application for a letter of request (“Ground 1”).

(2)  The Recorder erred in proceeding to make a ruling (at §27 of the Decision) that “there was insufficient reason to suggest that the PRC court would be receptive to a request for cross examination” under the Arrangement when the Hong Kong court is the requesting party (“Ground 2”) in that -

(a)  The question of whether the PRC court will be receptive to a request for cross-examination is a matter of PRC law. On an application for a letter of request to be issued, the Hong Kong court need only be satisfied that its request would probably be entertained, and there is no need to consider the extent of cross-examination permitted, since that only goes to discretion and not jurisdiction.

(b)  The question of whether cross-examination and the extent thereof will be allowed is a matter of internal PRC law, and the criteria is whether it is prohibited by local (PRC) law. The objective evidence (based on the Macau Arrangement) is that such is not prohibited.

(c)  There is no, or no sufficient basis to believe that under the Hong Kong Arrangement, there was a deliberate provision to disallow cross-examination when the requesting party is the Hong Kong court.

(3)  The Recorder, in relation to Issue 2, erred -

(a)  in setting the basis too high insofar as he proceeded on the basis that it is one of necessity;

(b)  in failing to, sufficiently or at all, differentiate between (full-fledged) cross examination and “restrictive form of cross examination”;

(c)  in proceeding on the (erroneous) basis that if the application is allowed and a letter of request is issued, the only evidence obtainable is the witness evidence “in chief”, and the witness “cannot be cross-examined” or “in substance not be cross-examined”;

(d)  insofar as the Recorder accepted that there will still be “limited cross examination”, in giving no or almost no weight to such form of (limited) cross examination, in particular when there is no evidence on the extent of the limit (“Ground 3”).

(4)  The Recorder erred in failing to sufficiently, if at all, give any weight and/or consideration to the fact that at trial, viva voce evidence with limited/restricted cross examination is still a much better form of evidence (with its weight to be decided by the trial judge depending on the extent of the limited/restrictive cross examination) than a bare (written) statement, and will better serve the justice of the case and the interests and substantive rights of both parties (“Ground 4”).

DISCUSSION

20.The test for granting leave to appeal under s 14AA of the High Court Ordinance, Cap 4, is well settled. Leave to appeal shall not be granted unless the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal shall be heard. For this purpose, reasonable prospect of success means that the prospect must be more than “fanciful”, but does not have to be “probable”.

Ground 2

21.We shall first consider Ground 2, which raises the question of whether under the Arrangement, where the requesting party is the Hong Kong court, cross-examination of witnesses in the conventional sense as understood in Hong Kong is within the scope of assistance that may be given.

22.Articles 6 and 7 of the Arrangement state as follows:

“第六條

內地人民法院根據本安排委託香港特別行政區法院提取證據的，請求協助的範圍包括：

(一) 訊問證人；

(二) 取得文件；

(三) 檢查、拍攝、保存、保管或扣留財產；

(四) 取得財產樣品或對財產進行試驗；

(五) 對人進行身體檢驗。

香港特別行政區法院根據本安排委託內地人民法院提取證據的，請求協助的範圍包括：

(一) 取得當事人的陳述及證人證言；

(二) 提供書證、物證、視聽資料及電子數據；

(三) 勘驗、鑒定。

第七條

受委託方應當根據本轄區法律規定安排取證。委託方請求按照特殊方式提取證據的，如果受委託方認為不違反本轄區的法律規定，可以按照委託方請求的方式執行。如果委託方請求其司法人員、有關當事人及其訴訟代理人 (法律代表) 在受委託方取證時到場，以及參與錄取證言的程序，受委託方可以按照其轄區內相關法律規定予以考慮批准。批准同意的，受委託方應當將取證時間、地點通知委託方聯絡機關。”

English translation

“Article 6

The scope of assistance that may be requested by a People’s Court of the Mainland in requesting the taking of evidence by the Courts of the HKSAR under the Arrangement includes:

(1) examination of witnesses;

(2) obtaining of documents;

(3) inspection, photographing, preservation, custody or detention of any property;

(4) taking of samples of any property or carrying out of any experiments on any property;

(5) medical examination of any person.

The scope of assistance that may be requested by a court of the HKSAR in seeking the taking of evidence by the People’s Courts of the Mainland under the Arrangement includes:

(1) obtaining of statements from parties concerned and testimonies from witnesses;

(2) provision of documentary evidence, real evidence, audio-visual information and electronic data;

(3) conduct of site examination and authentication.

Article 7

The requested party shall arrange the taking of evidence in accordance with the provisions of the law of its jurisdiction. The requested party may carry out the taking of evidence in a special manner as requested by the requesting party, provided that the requested party considers it is not in breach of the provisions of the law of its jurisdiction. If the requesting party requests that their judicial officers, the party concerned and their agent ad litem (legal representative) be present during the taking of evidence by the requested party and be involved in the proceedings for taking testimony, the requested party may consider granting approval in accordance with the relevant provisions of the law of its jurisdiction. Upon approval, the requested party shall inform the requesting party’s liaison authority of the time and place for the taking of evidence.”

23.The question of whether under the Arrangement, where the requesting party is the Hong Kong court, cross-examination of witnesses in the conventional sense as understood in Hong Kong is within the scope of assistance that may be given was considered by Au-Yeung J in Huang Yu Hui. Her Ladyship’s careful analysis of this issue was set out at §§25-37 of her judgment in that case, as follows:

“[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.

(1) Article 18: ‘代為調取證據的範圍包括：代為詢問當事人、證人和鑑定人，代為進行鑑定和司法勘驗，調取其他與訴訟有關的證據’. (emphasis added)

(2) Article 20: ‘受委托方法院在執行委托取證據時，根據委托方法院的請求，可以允許委托方法院派司法人員出席。必要時，經受委托方允許，委托方法院的司法人員可以向證人、鑑定人等發問’. (emphasis added)

(3) Article 22: ‘受委托方法院可以根據委托方法院的請求，並經證人、鑑定人同意，協助安排其轄區的證人、鑑定人到對方轄區出庭作證。……本條規定的出庭作證人員，在澳門特別行政區還包括當事人’.

(4) Article 23: ‘受委托方法院可以根據委托方法院的請求，並經證人、鑑定人同意，協助安排其轄區的證人、鑑定人通過視頻、音頻作證’.

[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:

‘雖然中國大陸法律沒有關於盤問的具體規定，但是……在審判人員許可的情況下，當事人及其訴訟代理人是可以詢問證人的。

中國大陸法律中沒有關於盤問的具體規定，根據《民事訴訟法》和相關司法解釋法官當事人雙方及其律師可以對證人進行詢問，但是當事人雙方及其律師的詢問要在獲得法官的許可下，但是中國大陸法律沒有關於順序、回合、問題範圍等的詳細規定。

所以，雖然中國大陸法律中沒有盤問的具體規定，但是在質証過程中訴訟雙方是可以對証人做出詢問並且達成和香港普通法規定的盤問相同的效果的。’(A/218)

[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:

‘Nor does it seem to me necessarily fatal to the application that there may be difference between the cross-examination which might be conducted in a Hong Kong court and the cross-examination which might be conducted in the Dutch court. What seems to me to be important is that Fang/HWH and CT/CTHK would have a fair and proper opportunity to cross-examine SVO on those issues in the Hong Kong actions on which they wish to cross-examine.’

[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.”

24.On the basis that cross-examination did not fall within the scope of Article 6, Her Ladyship concluded that there was no reason to believe that a letter of request, even if issued, would likely be executed (§38). Accordingly, she dismissed the application for the issuance of a letter of request in that case.

25.We agree with the above analysis of Au-Yeung J in Huang Yu Hui. The question of whether under the Arrangement, where the requesting party is the Hong Kong court, cross-examination of witnesses in the conventional sense as understood in Hong Kong is within or outside the scope of assistance that may be given under Article 6 depends on the true interpretation of that article. As in any exercise of interpretation of an instrument, the proper interpretation of Article 6 must have regard to its context, purpose and language.

26.As for its context, the Arrangement, entered into in pursuance of Article 95 of the Basic Law (which provides that “The Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain judicial relations with the judicial organs of other parts of the country, and they may render assistance to each other”), concerns the taking of evidence in Hong Kong (being outside the jurisdiction of the Mainland court) for use in legal proceedings in the Mainland in civil and commercial matters, and vice versa.

27.The purpose of the Arrangement is self-explanatory, namely, to facilitate the mutual taking of evidence in civil and commercial matters between the courts of the Mainland and the HKSAR.

28.As for the language, the difference in the terminology used in Article 6 for describing the assistance that may be given between the situations where (i) the requesting party is the Mainland court, and (ii) the requesting party is the Hong Kong court, is stark (“訊問證人” as opposed to “取得當事人的陳述及證人證言”), and the omission of any reference to “examination” of witnesses where the requesting party is the Hong Kong court is glaring. As pointed out by Au-Yeung J at §31 of her judgment in Huang Yu Hui, the Arrangement was negotiated between Mainland China and Hong Kong. Oral examination of witnesses, including cross-examination for the purpose of attacking the credibility of an opponent’s witness, establishing the truth of a party’s case and destroying the truth of the opponent’s case, is a well-known feature of the trial process in Hong Kong, and must have been known to those responsible for negotiating and drafting the Arrangement. Had it been the intention of the parties to the Arrangement that assistance in the form of cross-examination of witnesses be available where the requesting party is the Hong Kong court, it is unthinkable that they would not have expressly mentioned it in Article 6, but instead used the terminology of “取得當事人的陳述及證人證言” which would be wholly inapt to include cross-examination in the sense as conventionally understood in Hong Kong.

29.There is nothing in the context or purpose of the Arrangement which would lead to a different reading of the scope of Article 6.

30.Under Ground 2, the Plaintiff argues that the Recorder erred in proceeding to make a ruling that “there was insufficient reason to suggest that the PRC court would be receptive to a request for cross examination” under the Arrangement when the requesting party is the Hong Kong court. This argument is plainly unsustainable. If, as we consider it to be the case, cross-examination is outside the scope of the assistance that may be rendered to the Hong Kong court under the Arrangement, it must follow that the Mainland court will not be receptive to a request for assistance including cross-examination coming from the Hong Kong court.

31.The 3 arguments raised by the Plaintiff under Ground 2 (see §19(2) above) to attack the Recorder’s conclusion are all unmeritorious:

(1)  In respect of the first argument, the Recorder did consider the question of whether the request would probably be entertained by the Mainland court, and came to the view he was not satisfied that “the People’s Court would be receptive to a request for cross-examination” (§27 of the Decision). The Recorder also accepted that the permissible scope of cross-examination (if any) only went to discretion and not jurisdiction (§§13-14 and 30-31 of the Decision), and proceeded to consider how the discretion ought to be exercised under Issue 2.

(2)  In respect of the second argument, we consider that whatever may be the permissible scope of cross-examination under internal PRC law, the question of whether cross-examination is within the permissible scope of assistance which may be rendered under the Arrangement where the requesting party is the Hong Kong court is a matter governed by the Arrangement. In any event, it seems clear from such expert evidence as was placed before the Recorder[4] that cross-examination in the conventional sense as understood in Hong Kong is not available, whether under internal PRC law or the Arrangement. Lastly, the Macau Arrangement relied upon by the Plaintiff in fact supports the Defendants’ case that cross-examination is outside the scope of Article 6 of the Arrangement in the situation where the requesting party is the Hong Kong court, as convincing analysed by Au-Yeung J at §§26-27 of her judgment in Huang Yu Hui.

(3)  In respect of the third argument, the question of whether cross-examination is within the permissible scope of assistance which may be rendered under the Arrangement depends on the true interpretation of the Arrangement, and has been dealt with above.

Ground 1

32.Under this ground, the Plaintiff argues that the Recorder erred in failing to, sufficiently or at all, distinguish between and/or address the difference, and hence the effect of, no cross-examination and no full-fledged cross-examination, on an application for the issuance of a letter of request. This criticism of the Decision is not justified.

33.First, as the Plaintiff’s solicitor himself plainly recognised, in the circumstances of the present case where the evidence of Luo is important (“will have significant implication on the outcome of the Actions”), it is appropriate to have a “full-fledged cross-examination of Luo” (see §12 above).

34.Second, it cannot seriously be suggested that the Recorder did not recognize, or failed to distinguish between the difference, and hence the effect of, no cross-examination and no full-fledged cross-examination:

(1)  At §43 of the Decision, the Recorder said that “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 cross-examination would be necessary, let alone desirable”.

(2)  At footnote 6 to the above paragraph, the Recorder further said: “The Plaintiff submits that if there is viva voce evidence…, ‘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.”

(3)  The above passages should be read together with §13 of the Decision, where the Recorder stated: “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?”

(4)  At §29 of the Decision and footnote 5 thereto, the Recorder also posed this question for consideration: “Even if Luo cannot be cross-examined under the Arrangement, should he be ‘examined’ in chief (or at most with limited cross-examination) assuming that this is available under the Arrangement?”

(5)  Plainly, the Recorder had considered the scenario of a “more limited or diluted form of cross-examination”, but came to the view that nothing short of “fully-fledged cross-examination” would be sufficient for the purpose of justice in the circumstances of the present case.

35.Third, if it was the Plaintiff’s position that even though full-fledged cross-examination (in the conventional sense as understood in Hong Kong) would not be available under the Arrangement, sufficient justice could still be achieved because the Defendants would have an opportunity to conduct some limited or restricted form of cross-examination, it would be incumbent upon the Plaintiff, as the applicant for a letter of request, to explain, and produce relevant evidence of, the limit or extent of the cross-examination that may be available so that the Recorder could properly evaluate whether it would be necessary in the interests of justice in the present case to issue the letter of request sought by the Plaintiff. This the Plaintiff has failed to do. As pointed out by the Recorder at footnote 2 to the Decision, the Plaintiff’s counsel recognised that “the expert evidence [adduced by the Plaintiff] is at best peripheral”. Further, as remarked by the Recorder at footnote 6 to the Decision, the Plaintiff has not shown what limited or restricted form of cross-examination may be available, and what value to the process of assessing the evidence would such cross-examination bring about. In the circumstances, it lies ill in the mouth of the Plaintiff to complain that the Recorder failed to, sufficiently or at all, “distinguish between and/or address the difference, and hence the effect of, no cross examination and no full-fledged cross examination” in the present case.

Ground 4

36.This ground can be dealt with briefly. It is trite that the Court of Appeal will not intervene in the exercise of a discretion by a first instance judge unless the judge erred in law or principle, or acted under a misapprehension as to the facts, or took into account irrelevant matters or failed to take into account relevant matters, or the judge’s conclusion fell outside the generous ambit within which a reasonable disagreement is possible. No such error exists in the present case. The Recorder’s conclusion that it would not be in the interests of justice, let alone being necessary in the interests of justice, to issue 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 (§44 of the Decision), is one which was well open to the Recorder to come to in the circumstances of the present case, bearing in mind that the resolution of the conflict in the evidence of Luo and Zheng will be an important issue at the trial, as recognised by the Plaintiff’s solicitor himself (“The decision of the Court to prefer the evidence of Luo or that of Zheng will have significant implication on the outcome of the Actions”, see §12 above).

Ground 3

37.Under Ground 3(a), the Plaintiff argues that the Recorder erred in setting the basis for issuing a letter of request too high insofar as he proceeded on the basis that it is one of necessity. This argument has no merit. The statutory test for issuing a letter of request is whether “it appears necessary for the purpose of justice” to do so (see Order 39, rule 1(1) & (2)). The Recorder was not satisfied that it would be “in the interests of justice, let alone being necessary in the interest of justice” to issue the letters of request sought by the Plaintiff (see §44 of the Decision). The Recorder’s approach cannot be faulted.

38.The rest of the matters raised under Ground 3(b), (c) and (d) do not add anything of substance to the other 3 intended grounds of appeal which we have already dealt with above.

39.In all, we are not satisfied that the Plaintiff’s intended appeal has a reasonable prospect of success. We also do not see any other reason in the interests of justice why the appeal shall be heard.

DISPOSITION

40.The Summonses are dismissed with costs to Tsui and Zheng, which we summarily assess in the sum HK$38,000 for each summons.

41.We consider the 2 applications for leave to appeal to be totally without merit. Accordingly, we make an order that no party may request the present determination to be reconsidered at an oral hearing inter partes under Order 59, rule 2A(8) of the Rules of the High Court.

Mr Benjamin Chain and Mr Tony H H Chow, instructed by C L Chow & Macksion Chan, solicitors for the plaintiff in both actions

Mr Damian Wong, instructed by Chan, Lau & Wai, solicitors for the defendant in both actions