Bud-burma Incorporated v. Gougar Shirts Ltd

HCA000740/1977

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

ACTION NO. 740 OF 1977

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Coram: Mr. Commissioner Liu. Q.C. in Count.

Date of Judgment 12th October, 1977

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RULING

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1. Under section 47 of the Evidence Ordinance and Rule 11 of the Evidence (Hearsay) Rules, counsel for the plaintiff seeks to introduce no less than six documents, two of which are survey reports and the remainder are relating correspondence.

2. The Court is informed by Mr. Donnelly and it is evident from the documents referred to by counsel that the makers of all these documents are beyond the seas. From the tenor of section 53(2)(b) of the Evidence Ordinance, it would appear that if a proper notice had been served by the plaintiff on the defendant, all these documents could have been adduced with little difficulty in view of the full opportunities available to the defendant at all stages for verification by its own survey or otherwise. Naturally, the question as to weight will have to be determined by the trial judge at the end of the proceedings.

3. No notice under the Evidence (Hearsay) Rules was served by the plaintiff on the defendant. It has been disclosed by Mr. Donnelly that counsel then acting for the plaintiff advised that such service was quite unnecessary. From the course these proceedings have taken, as reflected from the documents in the Court file, there is no or no conclusive evidence that this advice of the plaintiff's former counsel was completely devoid of any justification; but Mr. Donnelly submitted that even if previous counsel had erred in this respect, the plaintiff should not be penalised beyond costs.

4. When Mr. Lowy gave evidence, it was obvious that both counsel and solicitor for the plaintiff were taken by surprise. He was unable to describe how samples had been selected for a local survey by a Hong Kong firm by the name of "Graham Miller" whose cargo inspector is expected to be a witness on behalf of the plaintiff.

5. Mr. Poon, counsel for the defendant, drew the Court's attention to Wong Hing v. Ip Fat Kwong (1) which is admittedly not on all fours with the provision under consideration. Mr. Poon relied heavily on an obiter of Mr. Commissioner Pickering, as he then was, at page 118 to the effect that a Court would frown upon the use of a much restricted predecessor of the present section 47 by irresponsible legal advisers as a free charter for dilatoriness in the production of documents. That is sound advice today as it was judicially tendered seven years ago, but there has been no lack of diligence in this case.

6. It was canvassed by counsel for the defendant that the defendant might well be deprived of an opportunity for conducting a survey or a proper survey of these goods due to the long lapse of time. Counsel for the plaintiff took exception to such a remark and stigmatized it as unfounded particularly in the absence of expert evidence. It was also submitted on behalf of the defendant, in opposition to this application, that the defendant would be, if these documents were to be admitted, left without the benefit of cross-examination of the makers of the documents. That cannot form the real basis of a meritorious complaint by reason of the very fact that the makers of these documents are now overseas and that with a proper notice the defendant would not have been entitled to serve a counter-notice as of right and would probably have had no opportunity to cross-examine these gentlemen.

7. Mr. Poon further explains that as counsel for the defendant, he has little respect for the survey report of "Graham Miller" of Hong Kong on the face of which, he will submit, the plaintiff's interest has not been sufficiently served. Thus, counsel concludes that he can find no necessity for advising his client to seek a second survey of the goods in suit which are still being stored in bulk in America with the exception of the few exhibits brought to Hong Kong for survey and Court production. I do not follow the logic of this volunteered information: The defendant has been made aware of the fact that the cargo inspector of Graham Miller will be called, and it must have, through its legal advisers, envisaged the possibility of the local survey report being supplemented by viva voce evidence. If the necessity of a further survey report had been under serious consideration, it should never have ceased to be a live issue. After all, the defendant were served with copies of these reports as early as the Order 14 proceedings, and there has been no response from the defendant to the correspondence of the plaintiff's solicitors on these reports. However, counsel for the defendant indicates that he will seek an adjournment so as to avail his lay client yet a further opportunity to have the same goods examined and surveyed if and after these documents are admitted.

It is, in my view, just and in the interest of justice, to allow the plaintiff's application but on the condition that they, the plaintiff, pay the costs of this application and for the remainder of today which will not be put to good use. I propose to have, at least, the examination-in-chief of Mr. Lowy concluded, and subject to the decision of Mr. Poon as counsel for the defendant, I certainly would be delighted also to be able to take the cross-examination and re-examination of Mr. Lowy in the interim. Any further costs thrown away by virtue of the proposed adjournment after the evidence of Mr. Lowy would have to be borne by the plaintiff in any event if they should feel disposed to persist in their present application. Subject to that, I would allow the application and admit the documents.

Representation:

Mr. Donnelly instructed by Messrs. Deacons for plaintiff.

Mr. Herman poon instructed by Messrs. David P. H. Wong for defendant.

(1) 1970 HKLR 1147