Urban Renewel Authority v. Agrila Ltd and Another

HCA 1582/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1582 OF 2002

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

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

Before: Deputy High Court Judge L. Chan in Chambers

Date of Hearing: 13 March 2009

Date of Decision: 19 March 2009

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

D E C I S I O N

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

1.This is an application by the defendants for an order that a decision of mine be withheld for publication pending the resolution of the defendants’ appeal therefrom.

2.The decision was given on 19 February 2009.  It was a decision on two appeals from a Master.  One appeal was against the Master’s decision not to strike out certain parts of a witness statement filed by the defendants.  The witness statement is supposed to contain the evidence in chief of a witness to be called by the defendants at the trial.  The plaintiff’s appeal was heard before me in chambers and open to the public.  I allowed the appeal and struck out parts of the witness statement on the ground of inadmissibility.

3.The other appeal is irrelevant to this application and I will not refer to it.

4.This application was made by letter which set out some initial grounds with an indication that the grounds could be elaborated if need be.  I directed a short hearing to determine this application.  The decision was withheld from publication pending the determination of this application.  The plaintiff had no views on this matter and was excused from attending the hearing. 

5.Mr Chan, leading counsel for the defendants, submitted several grounds in support of this application.  He referred to my decision which recited in verbatim a conversation between two person as recorded in the witness statement.  He further submitted that the decision also extensively cited the confidential and sensitive commercial terms of the underlying joint venture and the settlement agreement between the parties.  He said the revelation of these matters may well jeopardise the defendants’ interest.  The reason put forward being that the framework of the joint venture and the profits obtained by the parties therefrom would be made known to the public.

6.However, this was a joint venture that took place in the last decade of the last century and the final payment was made to the plaintiff at the end of May 2000.  Counsel has not told me how the defendants’ interest could be jeopardized if these matters are publicly revealed today.  I do not accept this ground.

7.Leading counsel also said that the publication and reporting by the media of the decision may affect the assessment of the evidence by the trial judge though he accepts that judges are trained to exclude such matters from their judicial minds.  I think judges are well-trained in excluding inadmissible matters.  I do not accept this ground.

8.Counsel further referred to the possibility of witnesses being misled by inaccurate media reports of the decision.  However, there were only three persons present on the occasion when the alleged conversation took place.  One person is a witness of the plaintiff who has denied the alleged conversation all together.  The second person is the maker of the witness statement in question.  The last person has not filed any witness statement at all.  He is also a person in charge of the defendants.  I therefore do not see how any of the three persons can be misled by inaccurate reports of the decision.

9.Counsel further submitted that other witnesses who were not present at the meeting might also be misled and their evidence unduly affected.  But counsel did not go further to say how these witnesses would be unduly influenced which would result in prejudice to the interests of the defendants or the interest in having a fair trial of the action.

10.I have been referred to the decision of Court of Appeal in Chan Sing Chuen v Yung Mei Chun, CACV 69 of 2003.  I do not think there will be any disclosure of sensitive or confidential information by the publication of the decision.  There is also no other reason which would justify the withholding of the decision for publication.  I therefore dismiss the application and the decision of 19 February 2009 will be published in due course.

11.Though the hearing of this application was not open to the public, I order that this decision be published in the usual course.

12.I also make a costs order nisi that there be no order as to costs. 

The Plaintiff, represented by JSM, excused from attendance

Mr Edward Chan, SC and Mr Norman Nip, instructed by Messrs Wilkinson & Grist, for the 1st and 2nd Defendants