Big Island Construction (HK) Ltd v. Wu Yi Development Co Ltd and Another

HCA1957/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1957 OF 2005

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Before : Hon Poon J in Court

Date of Hearing : 3 February 2010

Date of Decision : 3 February 2010

Date of Reasons for Decision : 22 February 2010

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REASONS  FOR  DECISION

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1.On Day 20 of the trial, the Wu Yi Parties applied for admission as evidence a purported fax dated 12 April 2001 described as copy exchange memo/customer advice issued by Nanyang Commercial Bank Ltd.  The application came after the Big Island Parties have closed their case.  After hearing submissions, I refused the application.  I had indicated that I would give the reasons in writing, which I now do.

2.Discovery is a continuing obligation.  But it does not mean that the court will condone late discovery made at the commencement or in the middle of the trial.  The court is generally not sympathetic towards such 11^th hour discovery.  In fact, the court rarely exercises its discretion to admit late documents.  This is particularly so after the CJR when numerous measures have been introduced to ensure that the case is properly prepared by the parties for trial.  Litigants, as well as their legal representatives, should be warned again that any late discovery will be refused unless it is well justified.

3.The burden lies squarely on the applicant why the court should exercise the discretion in his favour.  He must first provide a good and credible explanation, by way of an affidavit, as to why the document was not disclosed earlier.  Absent such explanation, the application may be refused on the ground of delay alone.

4.The applicant must also convince the court that document is relevant to the issues before the court.  Even if it is relevant, the court will not necessarily admit it.  Depending on the circumstances, the court may wish to apply a sense of reasonable proportionality.  For example, if the document will not add much to what has already been adduced, the court may decline to admit it.

5.The applicant must further state the provenance or identify the maker of the documents and indicate if he is available to attend court for cross-examination and if not, why not.  If the document is of dubious origin or if the other side legitimately needs to cross-examine the maker but he is for no good reason unavailable, the court may refuse the application.

6.The applicant must also satisfy the court the late document will not cause any prejudice to the other side.

7.He must also satisfy the court that the trial proper will not be unduly disrupted.  The court will most likely refuse to admit the late document if it will cause an adjournment of the trial or an abortion of the trial dates.

8.Here, the Wu Yi Parties have failed to offer a credible explanation by way of affidavit why the purported fax was not disclosed earlier.  The explanation was only given through Mr Ho, SC in his oral submissions.  He submitted that Mr Lin Baoshun, who sought to produce the fax, had left the Wu Yi Parties since 2004.  Mr Lin only found the fax recently and after he brought it to Hong Kong on 28 January 2010, it was disclosed on the following day.  But counsel had failed to explain why Mr Lin or any responsible officer of the Wu Yi Parties had been unable to find the fax until now.  Indeed, I can see no credible explanation at all.

9.In my view, there can be no justification for the inordinate delay.  On this ground alone, the application is refused.

10.Further, if the fax were admitted, it would cause serious disruption to the trial, which is already seriously overrunning.  For the Big Island Parties disputed the authenticity of purported the fax.  An adjournment in the middle of Mr Lin’s cross-examination to give the parties sufficient time to deal with the matters pertaining to authenticity is inevitable.  The interruption caused to the trial proper militates heavily against the application.  Further, Mr Ben Lee and Ms Li Hung may need to be recalled to deal with the fax, which is clearly undesirable.

11.For the above reasons, I refused the application to introduce the purported fax.

Mr Daniel R. Fung, SC leading Ms Sara Tong and Mr Benny Lo,  instructed by Messrs Stephenson Harwood, for the Plaintiff

Mr Ambrose Ho, SC leading Mr Lawrence Ng and Mr Harry Liu,  instructed by Messrs Ford, Kwan & Co., for the 1^st and 2^nd Defendants