Chan Tin Yau and Others v. Tsang Kwok Kay

HCA 21228/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 21228 OF 1998

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BETWEEN

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Before:  Hon Chung J in Court

Date of Hearing:  12 September 2006

Date of Ruling:  12 September 2006

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R U L I N G

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1.This is the ruling on the defendant’s application in effect for leave to re-open the examination-in-chief of DW1 曾國洪.  In short, defence counsel wants to elicit evidence from DW1 regarding the contents of a video tape, exhibited as “TKH-7” to the affirmation of DW1 dated 28 April 1999.  This is opposed by the plaintiffs.

2.The grounds of opposition are as follows:-

(1) the plaintiffs’ witnesses were not cross-examined regarding the tape when they testified.  To allow the defence to elicit evidence regarding it after the plaintiffs have closed their case is procedurally unfair because effectively this would deprive them of the opportunity to properly deal with the matter;

(2) further to (1) above, the defence has never indicated (whether by way of correspondence, or by including the tape in the bundles for use at trial) that it will be referred to at trial;

(3) not only has the examination-in-chief of DW1 been completed, he is already being cross-examined.

3.Defence counsel disagrees with all the above grounds.  She contends that:-

(a) there was no need to cross-examine the plaintiffs’ witnesses regarding the tape and no procedural unfairness has arisen or will arise;

(b) it is the plaintiffs’ own fault not to include the tape in the trial bundles.  They should acquaint themselves with all the documents (including the tape) which were disclosed by the defence during discovery;

(c) the right to further examine DW1 has impliedly been reserved when defence counsel indicated earlier during trial that the defence wishes to have the tape played in court later.

4.In short, I agree with the grounds put forth by the plaintiffs in opposition to this application and disagree with those put forth by the defence.

5.In particular, during the course of the trial, the defence has already on several occasions added new materials to the trial bundles without prior notice to the plaintiffs.  Plaintiffs’ counsel have been accommodating in not objecting to those earlier additions.

6.One of the purposes of preparing trial bundles is to put the litigants and court on notice of the materials which will be referred to at trial.  Efforts should be made to compile agreed bundles.  But in the absence of agreement, each litigant can prepare his own trial bundle(s) which (at least appear to him) contain materials which need to be adduced before the court.  The defence has not done so in this action.

7.I also disagree with defence counsel’s contention that the right to further examine DW1 has impliedly been reserved.  What has been indicated earlier was only an intention to play the tape in court.  There was no mention of eliciting further evidence from DW1 when the tape is played.

8.By reason of the above matters, I will refuse this application.

Mr Paul K N Wu and Mr Victor C F Cheung, instructed by Messrs Simon C W Yung & Co., for the Plaintiffs

Mrs Dona Chan, instructed by Messrs Tsang Chan & Woo, for the Defendant