Ko Philip Zhi Yao v. The Incorporated Owners of Hamburg Villa

DCCJ 5363/2020

[2024] HKDC 228

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5363 OF 2020

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DECISION

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1.On 9 June 2023, ie about 2 weeks before the commencement of the trial on 26 June 2023, the plaintiff filed a summons to make further discovery of evidence and to seek leave to adduce the same into the evidence for the trial (“Discovery Summons”). Given discovery is a continuing duty, the more significant aspect of the application is for the leave to adduce such newly discovered materials into the evidence for the trial. The materials that sought to be adduced are:

(a)  An approximately 20-minute video recording the joint-inspection on 30 December 2021 (“Joint-inspection Video”); and

(b)  A letter from a surveyor, Dr Patrick Lau of Trusty Surveyors (HK) Ltd, to the plaintiff dated 13 April 2021. (“Lau Letter”)  Dr Lau was the former expert appointed by the plaintiff. The Lau Letter set out Dr Lau’s account of what happened during the joint inspection of the Property with the defendant’s expert, surveyor Mr Simon Cheung, on 13 April 2021 which was aborted.

2.I heard arguments in respect of the Discovery Summons on 26 June 2023, and ordered that:

(a)  Leave be granted to the plaintiff to adduce the Joint-inspection Video into the evidence for the trial;

(b)  Application for leave to adduce the Lau Letter as evidence be refused; and

(c)  The costs of the Discovery Summons be to the defendant, to be taxed if not agreed.

3.The reasons for my decision were reserved and are as follows.

4.Insofar as the Joint-inspection Video is concerned:

(a)  It is direct evidence in respect of what took place during the joint-inspection on 30 December 2021.

(b)  There is a dispute on whether the plaintiff had obstructed the defendant’s expert, surveyor Mr Simon Cheung, from accessing and inspecting the guest bathroom on 30 December 2021. Mr Simon Cheung suggested that such obstruction occurred, whilst the plaintiff denied that there was any request to access or inspect the guest bathroom in the first place.

(c)  For reasons I will detail below, I consider that such dispute as to the reason behind the lack of inspection of the guest bathroom is only of marginal significance. However, given the Joint-inspection Video is directly related to matters arising from the contents of witnesses on both sides, I regard it as relevant to such extent.

(d)  The IO argued that the lack of satisfactory explanations for the delay in disclosing such video by itself was a prejudice which warranted the refusal to grant leave for adducing the same as evidence.

(e)  I accept the IO’s arguments that there was no satisfactory explanation in respect of the delay. The plaintiff did not suggest that he could not discover the Joint-inspection Video at the earlier stage of the proceedings. The only explanation given was that the materiality of the said video was only realized upon Counsel’s advice in the preparation of the trial.

(f)  However, on balance, I find that the evidential value of the Joint-inspection Video outweighs the prejudice arising from the lack of explanation of the delay. I therefore grant leave to the plaintiff to adduce such video as evidence in this trial.

5.Insofar as the Lau Letter is concerned:

(a)  Again, the plaintiff’s only explanation for the lateness of discovering the same was that it was his Counsel who pointed out the relevance of the Lau Letter in the preparation of this trial. There was no suggestion as to any inability to produce the said letter at any earlier stage.

(b)  More importantly, Dr Lau is no longer the expert witness for the plaintiff. Counsel for the plaintiff, Mr Adrian Leung, explained during the hearing that Dr Lau resigned as the expert witness on his own volition. There was no suggestion that he could not testify in Court for any reasons (eg physical incapacities).

(c)  The IO complained that since Dr Lau was not called by the plaintiff to testify in this trial, the IO would be deprived of an opportunity to cross-examine Dr Lau on the allegations in the Lau Letter that the IO disagreed.

(d)  I accepted the IO’s arguments that there would be substantial prejudice arising out of its inability to cross-examine Dr Lau.

(e)  I therefore refused leave to adduce the Lau Letter as evidence of the trial.

Mr Adrian Leung, instructed by Humphrey & Associates, for the Plaintiff

Mr Jevons Chan, instructed by Lau, Kwong & Hung, for the Defendant