Po Sang Bank Ltd v. Dampskibsseiskabet Af 1912 Aktieselskab and Aktieselskabet Dampskibsselskabet Svendborg and Another

HCA000434/1968

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

NO. 434 OF 1970

-----------------

-----------------

Coram: Mr. B.L. Jones, Assistant Registrar in Chambers

Date of Judgment: 8th day of March, 1971.

-----------------

DECISION

-----------------

1. This is an application by the Defendants for an order that a letter of request shall issue to the proper judicial authority of Japan for the examination of the export department and financial department managers of the Honda Motor Company Limited, Mr. S. Fujii of Maersk Line Limited, and other witnesses on the Defendants' behalf at Tokyo, Japan, and that the action be stayed until the return of the said letter of request and examination.

2. The notice issued under the Summons for Directions is dated the 21st October 1970 and is supported by an affidavit of the Defendants' solicitor, Mr. S. Robertson sworn on the 9th November 1970. The application was opposed by the Plaintiffs and Third Party but no affidavit in reply was filed.

3. It will be helpful if I set out briefly the facts of the case.

4. The Plaintiff bank, whose registered office is in Hong Kong claims damages against the Defendants in tort for conversion or detinue, and for breach of contract. The Defendants are a Danish Shipping Line whose registered office is in Denmark but carry on business in Hong Kong through local agents.

5. The action arose as a result of two bills of lading dated the 19th August 1969 whereby the Defendants agreed to deliver to the order of the Plaintiff at Djakarta, Indonesia from Japan 500 units of Honda motor cycles types s.90-11. By a certificate dated the 19th August 1969 the Defendants agreed to deliver the goods to the consignee against the surrender of the original bills of lading.

6. The Plaintiffs who claim to be the owner of the goods and as holders for value of the bills of lading allege that the Defendants failed to make delivery in accordance with the contract.

7. The Defendants by their defence deny that the property in the goods ever passed to the Plaintiffs and claim that the goods were delivered to the notify parties in or about October 1969 in Indonesia.

8. Third Party proceedings have been issued in which the Defendants claim to be indemnified under a letter of guarantee dated the 3rd October, 1969 and by a letter dated the 4th October 1969.

9. The Third Party denies responsibility for the letter of guarantee and the letter dated 4th October 1969.

10. In their reply the Plaintiffs aver that if the goods were delivered to the notify party it amounted to a fundamental breach of the Defendants' obligations to deliver the goods to the Plaintiffs.

11. Mr. Robertson in his affidavit says that the witnesses referred to are material and necessary and that the action cannot safely proceed to trial without their evidence.

12. The managers of the Honda Motor Company Limited are required to give evidence as to the parties to the contract of sale in respect of the goods covered by the bills of lading and as to the true relationship between the Honda Motor Company Limited and the Third Party. The evidence of Mr. Fujii is required to explain and clarify the certificate of the 19th August 1969. It is stated that all these witnesses are at present residing and working in Japan and that they are willing to give evidence on the Defendants' behalf before a special examiner in Tokyo. However, it is contended that it would be very difficult for each of the witnesses to attend Hong Kong for the trial and that in view of the nature of their evidence it should be taken in Japan. The affidavit concludes with a request that the evidence of other persons whose names are at present unknown but whose evidence is believed to be material and necessary should also have their evidence taken in Japan.

13. Mr. Mills-Owens who appeared for the Defendants maintained that he evidence that he wishes to be taken in Japan relates solely to the issue on contract and that the object of the examination is to demolish the Plaintiffs' claim on this aspect.

14. The evidence of the witnesses in Japan may be material and necessary to the Defendants' case but whether the application should be granted is entirely a matter for the discretion of the court.

15. Mr. Mills-Owens commented upon the Plaintiffs' choice of Hong Kong as the forum of these proceedings and referred to the case of Ross v. Woodford 1894 1 Ch. P.42 where the court held that in such applications of the present nature it will look more favourably towards a Defendant than towards a Plaintiff. However, it is significant that the Defendants have not challenged the jurisdiction of this court despite clause 32 of the two bills of lading which provides that Danish law will determine all disputes to the exclusion of the jurisdiction of the courts of any other country.

16. The facts of Ross v. Woodford can be distinguished from the present application in as much as the Defendants in that case were not possessed of unlimited means and would have been put to great expense to attend the trial by coming from South Africa to England for that purpose. It could hardly be said that in this case the expense to the Defendants would be great nor could it be said to be oppressive and unfair for the witnesses named, who hold responsible positions in their respective companies, to come to Hong Kong for the trial. The Defendants have provided no information with regard to the names of the other witnesses, their positions or the evidence that they are required to give with the result that the application so far as they are concerned fails completely.

17. In Lawson v. Vacuum Brake Company LR 27 Ch. Division P. 143 Cotton, L.J. said

'It is most desirable that such a witness should be examined in open Court. If, however, it could be shewn that he could not be induced to come here, or that the Plaintiff could not reasonably be expected to bring him here, I think it would be tight to give leave to examine him abroad, and it would be for the Court or the Jury at the trial to determine how far the weight of his evidence was affected by their not having seen or heard him. But I think that in a case of this sort, where it is important that the witness should be examined in Court, a heavy burden lies on the party who wishes to examine him abroad, to shew clearly that he cannot be reasonably expected to come here. On that point the Plaintiff has failed. In my opinion there is not sufficient evidence to satisfy me that this witness cannot be brought here, or will not come here. It is true we are told he is in the service of some company, but we do not know what is the character of his occupation, or whether he would not be able at comparatively small expense to leave for a time his position there, and come over to this country. In my opinion, therefore, it is not shewn to be necessary for the purposes of justice that the examination of this witness should take place in America, and the appeal must be dismissed.'

18. Accordingly the onus is upon the Defendants to show clearly that the witnesses cannot be reasonably expected to come to Hong Kong. The affidavit of Mr. Robertson says that it would be very difficult for the witnesses to attend here, but no reasons have been given to support this contention. It is common knowledge that without undue expense arrangements could be made for the witnesses to travel to Hong Kong from Japan by air and for their evidence to be taken the day after their arrival. The expense involved in bringing the witnesses here could in no way be said to be prohibitive to the Defendants.

19. Although the Defendants cannot compel the witnesses in a foreign country to attend here, this aspect does not arise, for the affidavit filed in support of the application shows that the witnesses are ready and willing to give evidence on the Defendants' behalf. It has been said that the witnesses are reluctant to travel to Hong Kong for the trial but no evidence has been provided by the Defendants to this effect nor has an approach been made to the witnesses with a request to come here for this purpose.

20. I am not therefore satisfied that the witnesses are either unwilling or unable to be present in Hong Kong for the trial. Further it is not in dispute that the Defendants have made no effort to obtain the evidence required by other means such as notice to admit facts, affidavit or interrogatories. Mr. Mills-Owens in answer to this point said it is doubtful whether the matters to be ascertained are within the knowledge of the Plaintiffs and consequently such an approach would not help. However, I consider that the Defendants should have made an attempt before issuing this application.

21. Mr. Cheung for the Third Party posed the question that if an order is not made would the evidence be lost to the Defendants. The Defendants have not established that the evidence of their witnesses would be lost if I refuse their application.

22. In the interests of justice between the parties I am of the opinion that the Defendants have failed to show that it is necessary for the witnesses to be examined in Japan.

23. As a result the Defendants' application will be dismissed.

24. Costs of and incidental to this application will be paid by the Defendants. There will be a certificate for one counsel for each party.

25. Dated the 8th day of March, 1971.

Representation: