Man Ping Nam v. Man Mei Kwai

HCA009852A/1998

HCA 9852/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. HCA 9852 OF 1998

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Coram: Deputy High Court Judge Andrew Cheung in Court

Date of hearing: 8 January 2002 (2.49 pm - 2.58 pm)

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R U L I N G

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1. This is the second day of a trial scheduled to last seven days. The plaintiff has opened his case, has already called and completed the evidence of one expert witness and he is now giving evidence himself. Mr Chong, acting for the plaintiff, wants to rely on a supplemental witness statement of the plaintiff dated 4 October 2001 as part of the evidence of the plaintiff.

2. Mr Louis Chan, acting for the defendant, rightly pointed out that this supplemental witness statement of the plaintiff was produced and purported to be filed by the plaintiff without leave of court and therefore, strictly speaking, leave should be sought by the plaintiff. Mr Chan also fairly indicated to the court that on his side they really have no objections to the court's granting leave for the filing of this supplemental witness statement, with the exception of paragraphs 4 and 5 of the supplemental statement, relating to the making of a complaint by the defendant to the ICAC for corruption against the plaintiff, which complaint was subsequently found by the ICAC to be lacking in evidence in support. Mr Chan objected to these two paragraphs because they, according to Mr Chan, do not form any part of the pleaded issues between the parties.

3. Mr Chong sought to uphold the relevancy of these two paragraphs in the course of his application for leave to file the supplemental witness statement, by referring to paragraph 35 of the amended reply and defence to counterclaim, where the plaintiff avers that the counterclaim of the defendant is an abuse of the legal process and that it was taken out by the defendant with an ulterior motive. He argued that the making of a complaint by the defendant to the ICAC constituted part of the evidence that the counterclaim of the defendant is an abuse of the legal process and that the defendant took it out with an ulterior motive.

4. But paragraph 35 was not pleaded without any particulars accompanying the pleading. Three subparagraphs of particulars were pleaded and supplied as particulars in support of the allegation, or I should say very serious allegation, of abuse of legal process and the taking out of a counterclaim with an ulterior motive.

5. It is fair to say that none of these particulars purported to suggest that the defendant abused the process of the court, or took out the counterclaim with an ulterior motive by making a false complaint to the ICAC about alleged corruption on the part of the plaintiff.

6. So although, of course, it is part of the general principles of pleading that if a party pleads something which requires particulars but no particulars are supplied, yet the other side does not apply for further and better particulars, the party failing to ask for particulars may be taken to have waived the particulars, the situation is, in my judgment, quite different when an allegation requiring the supply of particulars is made by a party who also supplies the particulars together with his allegation. On a fair reading of a pleading or an allegation like paragraph 35, together with the particulars supplied thereunder, the plaintiff must be taken to be alleging that the grounds for alleging that the defendant has abused the process of the court and has taken out the counterclaim with an ulterior motive comprise, and comprise only, the three matters particularised under paragraph 35. As I have said, the particulars under paragraph 35 do not at all touch upon the making of a complaint by the defendant to the ICAC for corruption charges.

7. So in other words Mr Chan must be right when he argued that paragraph 4 and paragraph 5 on the existing pleading is totally irrelevant to the issues between the parties. So for that reason, whilst I am prepared to grant leave to the plaintiff to file and rely on the supplemental witness statement of the plaintiff, I would exclude paragraph 4 and paragraph 5 of the supplemental witness statement from the statement itself as a condition for my granting leave to do so.

8. Thus far I have not touched upon the possibility of the plaintiff applying to amend paragraph 35 of the amended reply and defence to counterclaim, so as to include an allegation that the plaintiff abused the process of the court and took out the counterclaim with an ulterior motive partly on the ground of the making of a complaint to the ICAC. But it would help if I indicate my provisional view here. Mr Chan, in anticipation of such an application for amendment, indicated to me that if such an application for amendment was made and was allowed he might very well have to ask for an adjournment to prepare his side's case in relation to the new allegation relating to the complaint to the ICAC, and that could lead to an adjournment of the present trial for weeks or even months.

9. Now, as I have said, this is already the second day of the trial. So far as I can see the ICAC issue, even if relevant, would really be a peripheral issue in the present case, judging from the materials already before me, and I would be most reluctant to allow anything to be done which would have the effect of aborting the present trial. In other words, any application which might lead to the necessity for adjourning the present trial would be scrutinised very closely by this court before it would be allowed. So that is all I want to say in relation to any proposed application to amend.

10. As I say, thus far no application has been made to me and I have not made any ruling in relation to it. But so far as the supplemental witness statement is concerned I have already made my ruling, and the parties will act accordingly.

Representation:

Present: Mr K M Chong, instructed by K W Lai & Co., for the Plaintiff (by original action) and the 1st and 2nd Defendants (by counterclaim)

Mr L Chan, instructed by Messrs Wong & Poon, for the Defendant (by original action) and the Plaintiff (by counterclaim)