Polo Court Development Ltd v. Teny Ltd
Read the full judgment text of DCCJ 2134/2020 on BabelCite. This District Court judgment was delivered on 7 April 2025.
1. This is the PTR for a trial scheduled to start on 3 June 2025.
Cited by 2 cases · Cites 7 cases
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DCCJ 2134/2020 [2025] HKDC 629 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 2134 OF 2020 -------------------------
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------------------------- DECISION ------------------------- 1.This is the PTR for a trial scheduled to start on 3 June 2025. 2.Mr Lau Ying Biu acts for the plaintiff (“P”). Miss Joyce H Y Lee acts for the defendant (“D”). Having read their written submissions it seemed clear to me that the disputes between the parties insofar as today’s directions are concerned boiled down to two matters, namely (1) whether D should be allowed to file and serve a supplemental witness statement for Cheung Wah Hang on or before 14 April 2025 (“Issue 1”); and (2) whether the witness statement of Norman Chang can be adopted as his evidence-in-chief at the trial (“Issue 2”). 3.I had serious concerns vis-à-vis both issues and raised written requisitions, inviting the parties to address me on them orally today, which they did. 4.On Issue 1, my main concern was D never provided this Court with a draft of the intended supplemental witness statement so that I could not scrutinize its contents and determine their propriety. It appeared to me that giving D a blank cheque would be dangerous in that if the contents of the supplemental witness statement turn out to be inappropriate, or if those contents would create a need for further investigations being conducted by P, the trial due to start in 8 weeks’ time could be derailed and costs would be wasted. Mr Lau Ying Biu, acting for P, sensibly submitted he was never in a position to consent to D’s application unless he had been provided with a draft. 5.The legal principles are trite but in light of the application they need to be set out here so that the parties can understand why I am refusing to hear the application in the absence of a draft. 6.It is best that I start with Keiron Peter Arch Rochester v Glory Sky Previous Metals Limited [2023] HKCFI 2536 where Wilson Chan J, in my view entirely correctly, stated this (§9): -
7.A judicial officer who had been in private practice at one point or another would fully understand the necessity or desirability of the parties making applications to file and serve supplemental witness statements does arise frequently. Sometimes, as was the case in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§120), the solicitors on record were at fault in that important questions were never asked of the witness in question, resulting in court documents being defective. In this connection, interviewing a witness is not that different from using ChatGPT, DeepSeek or similar AI models – one can only get useful answers if one asks the right questions. Defective prompts would lead to defective answers. Witnesses are usually without legal background. It is the job of a competent solicitor to prompt lay persons to provide the necessary evidence addressing the real issues in dispute in a helpful manner. If that was done badly, but the defect was most fortunately discovered in good time, the solicitor (be it the same, or a different, one) who discovered the defect is duty-bound to advise the client to attempt to rectify the defect before trial. An application to file and serve supplemental witness statements can be an admirable rescue mission. Of course, and this arises even more frequently, the solicitors on record can be completely blameless. Staying on the theme of ChatGPT, DeepSeek or other AI models – sometimes using the most appropriate prompts still lead to false or otherwise inadequate answers. If a solicitor (be it the same, or a different, one) discovered that the existing witness statements are no good because of a miscommunication in the past, or the failure of the witness to be helpful at the first interview, the solicitor who realized this is also duty-bound to advise the client to attempt to rectify the defect before trial. 8.However, with the potential disruption which any application to file and serve supplemental witness statements may cause to the trial of the action, we have rules governing such applications. In my view, the best summary of such rules is in the dictum of Mr Recorder William Wong SC in Re Cao Zhong [2021] HKCFI 3143, at §23, as follows: -
9.One can look at the list above and come to the firm view that whilst there is no rigid rule requiring the presentation of a draft, the reality of the matter is that in the absence of a draft, a judicial officer is usually in no position to determine whether leave should or should not be granted. 10.As I mentioned in Lei Yukang v Lin Youjun [2023] HKDC 568 (§20), and also in Licksun Company Ltd [2025] HKDC 372 (§5): -
11.In the context of an application to file and serve supplemental witness statements, “relevant materials” would include the supplemental witness statements in draft forms. 12.Miss Joyce H Y Lee, acting for D, sensibly accepted that the normal practice was for an applicant for leave to provide the Court with a draft supplemental witness statement first, so that the Court can scrutinize the intended contents. She profoundly apologized for not having submitted one on this occasion, with a full explanation. I accepted her apologies and explanation but the more pertinent question was what, then, should be done going forward. 13.Since it appeared to be possible for the matter to be dealt with by the parties by consent for as long as D’s legal team can come up with a draft supplemental witness statement within 7 days from today my decision is to simply refuse to deal with the matter today, and impose an unless order for D to take out a proper inter partes summons with a draft supplemental witness statement annexed, failing which D should be barred from making any application for leave to file and serve supplemental witness statements before the commencement of the trial. There should also be an affirmation in support from D explaining (1) the serious delay; and (2) in what way can the supplemental witness statement assist the trial judge in the adjudication of this matter. 14.Turning to Issue 2, P’s original submissions that the witness statement of Norman Chang should somehow not be adopted as evidence-in-chief were incomprehensible. P’s real options were to (1) make a proper application to have the witness statement expunged; or (2) let the statement get adopted as evidence-in-chief exactly as it is and deal with any perceived problem with its contents by way of cross-examination and submissions on weight. After some oral discussions, Mr Lau Ying Biu, acting for P, chose option (2) and formally withdrew his objection to the witness statement of Norman Chang being adopted as evidence-in-chief without prejudice to his future submissions on issues of weight, etc. 15.That was most sensible. 16.All things considered, I hereby make the following order: -
17.For the record, I am aware Miss Joyce H Y Lee, and Holman Fenwick & Willan, were new to the case. I hope they would perform their duties better than their predecessor, who somehow failed to appear in Court in April 2021 and wasted costs – see [2021] HKDC 508 (§§7, 8 & 23). All practitioners should take their professional obligations seriously. 18.I thank both advocates for their most able assistance.
Mr Lau Ying Biu of Liu, Chan & Lam for the plaintiff Ms Joyce Lee, instructed by Holman Fenwick & Willan, for the defendant | ||||||||||||||||||||||||||
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