Chan Wing Cheung Allan v. Ho Shu Yee Susana

CACV393/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 393 OF 2004

(ON APPEAL FROM HCA NO.1941 OF 2000)

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BETWEEN

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Before: Hon Ma CJHC & Le Pichon JA in Court

Date of Hearing:   10 January 2005

Date of Judgment:   10 January 2005

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J U D G M E N T

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Hon Ma CJHC :

1.In this action the Plaintiff claims against the Defendant the sum of $3 million being a loan that was allegedly made to the Defendant in or about May 1998 that has since not been repaid.  The Defendant denies that this sum of money was lent to her.  Rather, it is said that of the sum, $2 million was paid to her as a repayment of a loan or loans made by her to the Plaintiff and that $1 million was paid not to her but to one of his other creditors.  The Defendant also counterclaims on the basis of other loans made by her to the Plaintiff, these amounting to a claim for over $2.5 million.

2.Both parties have been aware since at least the pleadings stage of the importance of proving the various loans at trial.  The Defendant was ordered to (and did) provide further and better particulars in support of her allegations of loans having been made to the Plaintiff and discovery was also ordered by the Court.  All this took place in late 2003.

3.On 28 March 2001, Master Cannon ordered that the parties exchange witness statements within 60 days of that date.  On 27 May 2003, Master Lung gave leave to the Plaintiff to file and serve supplementary witness statements and similarly gave leave to the Defendant to file and serve supplementary witness statements within 42 days of that date.

4.The Plaintiff filed and served a supplementary witness statement on 12 March 2004.  By a 4th Checklist dated 19 March 2004, the Defendant confirmed to the Court inter alia that (a) proofs of all her witnesses had been prepared; (b) advice on evidence had been obtained from counsel; (c) that the solicitors were satisfied that there was no need to deal with any further interlocutory matters and (d) that all steps that ought to be taken for the preparation for the trial had been duly taken and completed.  Following this Checklist having been filed, on 24 March 2004 Master Lung gave leave to the Plaintiff to set the action down for trial and also ordered that there be a pre-trial review 4 weeks before the trial date.  The date for trial was fixed on 27 April 2004.

5.On 13 December 2004, at the pre-trial review ordered to take place by Master Lung, the Defendant sought leave to file and serve, for use at trial which has been fixed for hearing on 12 January 2005, a lengthy supplementary witness statement of the Defendant (comprising 47 paragraphs and 11 pages, with attached documents amounting to 36 pages – in all 47 pages).  This witness statement dealt extensively with the question of the loans allegedly made by the Defendant to the Plaintiff.  The Defendant also sought leave to introduce two other witness statements of persons she wished to call at trial.  No explanation was given to the Court for the lateness of these witness statements.  This morning, Mr Lam has frankly admitted there was no excuse for the lateness.

6.Waung J, the trial judge, refused to allow the witness statements to be introduced at this late stage.  He was of the view (rightly) that the 5 days allotted for the trial would be insufficient if the witness statements were allowed in.  He gave an estimate of nearer 20 days.  This, he concluded, would be unfair to the Plaintiff who had instituted proceedings in 2000.  He gave the following directions for trial : -

“1.    No supplemental witness statement be adduced by the Defendant;

2.    Defendant to open the case;

3.    Defendant to serve a list of issues by 28 December 2004 by way of Scott Schedule with 5 columns in the form given to the parties;

4.    Plaintiff to serve a counter list of issues on the Scott Schedule as to Plaintiff’s answer by 6 January 2005;

5.    Trial to start on 12 January 2005 with 6 days reserved;

6.    Defendant to hand in a written opening by 10 January 2005;

7.    There be an allocation of time for the trial with Defendant to have half day for opening and 3 and ½ days for Defendant’s witnesses;

8.    Plaintiff shall have 1 day for Plaintiff’s witness;

9.    There be 1 day for Final Speeches;

10.    …..”

7.The Notice of Appeal was dated 21 December 2004 but the date for the hearing of the appeal (on an urgent basis) was not requested until 7 January 2005.  I find this delay since the hearing of 13 December 2004 to be unacceptable.

8.It has been said time and time again that the Court of Appeal will not disturb the case management powers exercised by the court below.  As Rogers VP said in Cable & Wireless HKT Telephone Ltd & Others v City Telecom (HK) Limited, unreported, CACV197/1999, 1 February 2000, Court of Appeal : -

“I would also add that this court is always reluctant to interfere with the exercise by a judge of his discretion in relation to the conduct of a case before him.  Case management is primarily a matter for the judge at first instance to decide what is appropriate and necessary in the circumstances of the case.”

In the same case, Ribeiro JA said this : -

“The question of whether there should be a split trial is pre-eminently a matter for the discretion of the judge.  Such decision forms part of his overall case-management of the proceedings and the Court of Appeal should not intervene unless it can be shown that his decision either to grant or dismiss the application was founded on some error of principle or clearly wrong.”

9.In my view, the Judge was correct in his attempt to case manage the trial of this action as best he could in the circumstances.  Certainly, in my view, the exercise of his discretion here cannot be faulted.  The following points are of note : -

(1)    While it can be accepted that the Defendant will inevitably be prejudiced by not having witness statements admitted into evidence, the Judge had to balance this prejudice against the prejudice caused to the Plaintiff in allowing them in at this very late stage.  The Plaintiff would be prejudiced by having to face an inevitable adjournment of a trial that had been fixed for hearing a very long time ago.  This was recognized by the Judge, rightly in my view, as being sufficient to constitute serious prejudice.

(2)    The predicament that the Defendant finds herself in is entirely of her own making.  As I have already remarked, the question of the loans allegedly made to the Plaintiff (the main issue in this action) was one that must have been obvious to the Defendant since at least the pleadings stage.  Despite having said (in the 4th Checklist) that proofs were taken and that effectively she was ready for trial, the Defendant has waited until almost the last possible moment to introduce witness statements that contains substantial matters.

(3)    It is a theme running through Mr Lam’s submissions that the only real prejudice suffered by the Plaintiff was one that could be compensated for in costs.  I have real doubts about this submission.  Quite apart from the fact that the Defendant is legally aided (so that the benefit of any costs order may be limited), the Defendant suffers the prejudice of not having the trial take place at the scheduled time.  This is often overlooked when matters are adjourned.

(4)    In any event, where an indulgence is sought from the Court, it would be a rare case indeed that this would be given, even on terms as to costs, without a satisfactory explanation being given to justify the grant of the indulgence.  The fact that this represents in the present case the first time that an indulgence had been sought by the Defendant is neither here nor there.

10.For the above reasons, I would dismiss this appeal.

Hon Le Pichon JA :

11.I agree.

Mr Francis K M Yip instructed by Messrs Thomas Li & Yu for the Plaintiff/Respondent

Mr Simon H W Lam instructed by Messrs Henry Lam & Associates for the Defendant/Appellant