The Hong Kong and Shanghai Banking Corporation v. Fung Wing King
Read the full judgment text of HCA 1419/1972 on BabelCite. This High Court CFI judgment.
1. This is an application brought by way of Summons under the provisions of O.39 R.2 for the examination of a defendant's witness, Mr. Fung Kai Sui, who is out of the jurisdiction and resides in Vancouver in the Province of British Colombia, Dominion of Canada.
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HCA001419/1972
IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION -----------------
----------------- Coram: Mr. Registrar Silke in Chambers Date of Judgment: 24th April 1974. ----------------- DECISION ----------------- 1. This is an application brought by way of Summons under the provisions of O.39 R.2 for the examination of a defendant's witness, Mr. Fung Kai Sui, who is out of the jurisdiction and resides in Vancouver in the Province of British Colombia, Dominion of Canada. 2. The grounds, as disclosed in the affirmations of the defendant filed on 22nd February and 19th April 1974, are five fold:-
3. These last two bringing into play the possibility of an 0.444 application and the issue of the Writ "he exeat colonia". 4. Oswald Cheung, Wsq., Q.C. with him Andrew Li, Wsq. instructed by F. Zimmern & Co. made the application and it is opposed by Charl's Ching, Wsq., Q.C. instructed by Johnson, Stokes and aster. 5. Mr. Ching's grounds for opposition are
6. The history of the action is of relevance, not as to the merits, for it is not for me to decide issues between the parties nor to speculate upon the eventual outcome of the proceedings, but as to the exercise of my discretion. 7. The Plaintiff alleges that in 1955 a Madame Tang Sui signed a deed of hypothecation and guarantee - referred to hereafter as "the Letter" - pledging certain shares already deposited with the Plaintiff bank, and others which might, thereafter, come into her possession. It is further alleged that Madam Tang undertook to pay to the Plaintiff Bank on demand and guaranteed to it repayment of all money due at any time from Hang Tai & Fung Co., Ltd. the company to which facilities were granted under the Letter. 8. The Company is a family one and the husband of Madam Tang, Mr. Fung Kai Shi, was not only the witness to the signing of the Letter but alse the person who, in effect, ran the Company. 9. The Company got into financial difficulties and, it appears, ceased operations in about 1965 though it remained in existence. Mr. Fung then went to Canada and I have no evidence that he has ever returned to Hong Kong. Madame Tang died in January 1969 without any demand having been made upon her in respect of the Letter and this action was instituted against her executor by the issue of the Writ in June 1972. 10. The basic defence is that of "non est factum". It is alleged that the witness, Mr. Fung, requested the deceased to sign a printed form, it having been represented to him by an official of the Plaintiff Bank that this was merely for the purpose of pledging the shares to the Plaintiff. He in turn made the same representation to the deceased who could not read, speak nor understand English. It alleges an honest belief in Mr. Fung that the Letter was a document pledging the shares with the Plaintiff to secure facilities for the Company from the Plaintiff and nothing else and that the deceased signed the document in that belief. There is a counter claim in respect of monies realised from the sale of shares other than those actually in the Plaintiff's hands at the time of signing. 11. Certain letters exhibited to an affirmation filed in connection with proceeding for summary Judgment are of interest in considering, generally, bone fides. 12. First, the affidavit of Diniz Maria Rodrigues filed on 9th November, 1972 being the relevant one, is a letter "DMR1" on the note paper of Hang Tai & Fung Co., Ltd. which "hastens to add that we are not suggesting any misrepresentation having taken place and refers to the as in all probability signing without being fully aware of its (the Letters)" significance" - this dated November 1971. 13. Second "DMR7" written by the witness to Mr J.A.H. Saunders as he then was which refers to his wife's signing a letter of hypothecation the full terms of which, I am sure had not been interpreted to her, because she did not know English. - this dated March 1972. 14. The first time direct allegations of misrepresentation arise on the pleadings is in the defence and counter claim filed on the 83rd February 1973. 15. Further there are exhibited to the affirmation of Mr. Rodriguos betters of Hypothecation in similar terms to the one in dispute signed, in 1950, by the witness as principal and in 1957 by him as the witness to the signature of the principal. 16. I have gone into this in some details not in respect of the bone fides of the defence to the claim but in relation to the bone fides of this instant application. 17. I am left in no doubt that Mr. Fung is a material - indeed vital - witness for the defence. While there is no averment that there is no other witness available it appears from the nature of things that Mr. Fung is the only person who can give the evidence to support that defence. 18. I deal with Mr. Ching's third, fourth and fifth objections together as they all impinge one upon the other. 19. I agree that credibility of the witness is here a major factor and that he would, no doubt, be subjected to rigorous cross-examination. I bear in mind that a cross-examination conducted in open court in the normal course of a trial is a much more arduous - and possibly effective a matter than one conducted before a special examiner in another jurisdiction. I have before me the simplestatements, uncontradicted as they may be, that the witness is not willing to come, that he is seventy years of age and has some from of spinal injury. No medical evidence has been produced in respect of this last. 20. Other than the statement that there is an unsatisfied Judgment and that there are creditors in existence I am in complete ignorance of the condition of that Judgment and the standing or extent of those creditors. 21. Could it be said that the witness is attempting to avoid cross-examination? I note that which was said in In Re Boyse Crofton v. Crofton (1881 - 82) 20 Ch. D. 760 (which report, incidentally, incorporates Berdan v. Greenwood) by Fry J. at p.770 "The question I have to determine is whether the evidence shows that it is necessary for the purposes of justice that I should issue a commission to the French Court to examine M. Eautior". This is my overriding consideration in this matter also in respect of this witness. The deciding issue in Boyse was the different methods used in a French Tribunal and the possibility of a lack of cross-examination. This is not a consideration here. 22. Cotton L.J. in Berdans case said at p.768 "now, in my opinion, in order to establish a case for examination by commission it is not necessary to prove that, in all human probability, the bringing of the Plaintiff over here will cause his death. But I think the Plaintiff must make out that, from circumstances peculiar to his state of health, there will be a serious risk in requiring him to come her and that must be established if we are to consider that his evidence is the only evidence which can be given on the point". 23. Here we do not of course have a Plaintiff who can choose his venue but we do have a witness who is deeply involved with the defence of misrepresentation and non est factum. 24. I conceive the burden on the applicant to be, in the circumstances of this case a heavy one, they must "show clearly that the witness cannot be reasonably expected to come here per Cotton L.J. in Lawson v. Vacuum Brake Company 1884 27 Ch. D. 137 at p. 143. There there was an affidavit in support of the application which stated, inter alia, ".......... I believe that the said D.N. Yeomans cannot come over to England to attend and give evidence on the trial of this action. I am able to make the foregoing Statements from knowledge derived from letters written by the Plaintiff from America to my said principals". Baggally L.J. (at p. 142) described this as "Anything more vague than this testimony one can hardly-imagine". 25. While I do not know the circumstances, nor the date, in and upon which the witness told his son he was unwilling to come to Hong Kong this, and the other matters referred to contra his appearance here, are stronger than the reasons in Lawson. 26. I must also have regard to the cost - and the arranging for a full and searching corss-examination will obviously involve a considerable sum - whether Mr. Ching travels or whether Canadian lawyers are instructed. 27. A witness so invloved with that which grounds this case - not simply an ancillary itness to a fact necessary to be proved - cannot be allowed to hold a court to ransom by refusing to attend nor can he be allowed to interfore with the ordinary course of justice. Having said this there is no method of compelling such a witness to attend in Hong Kong to give his evidence and without him it does not appear to me that the defence could hope to succeed. 28. I think the applicant to have, on balance - though the balance is a mite fine drawn - to have made out his case that the witness both refuses to come and cannot be reasonably expected to come here. 29. If I have not dealt specifically with all the objections raised by Mr. Ching it is not for want of consideration for them but the main issues pertaining to the exercise of my discretion in this matter have, as I see them, been set out in the course of this decision. 30. One other point. I have considered whether or not I should attach, as Mr. Ching has sought, stringent conditions to the Order I intend to make for an examination as I understand it that which Mr. Ching is saying is that he is going to succeed, when he does he cannot get his full claim as the estate will not bear it and therefore the costs of the examination, which will be substantial are a form of surcharge on his claim and he will be at a loss of them. 31. While there is some merit in this, but if and only if the Plaintiff succeeds, I think to make on order that the defendant pays those costs and, further, that he provides a form of security for them would be going further than the speculation as to the result of this action which I expressly reserved myself from doing in the first place. 32. There will be an Order in terms of Summons appointing H.A. Hollinrake, Esq. as a special examiner for the purpose of taking examination, cross-examination and re-examination, viva voce, on oath or affirmation of Fung Kai Shi and, to note but not rule on objections, at a place to be appointed by the said H.A. Hollinrake in Vancouver in the Province of British Colombia, Dominion of Canada on the usual terms and that the costs of this application and the costs of and incidental to the said examination be costs in the cause, the defendant herein to be primarily liable for the payment of the examiner's fees. 33. Certified fit for Counsel. 34. Dated this day 24th of April 1974.
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