Ip Man Sun and Anaother v. Hui Cheong and Another

HCA 2370/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2370 OF 2002

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BETWEEN

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Before: Mr Recorder Patrick Fung, SC in Court

Date of Hearing: 5 October 2010

Date of Decision: 5 October 2010

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D E C I S I O N

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1.I now deal with Counsel for the Defendants’ application for an adjournment of the trial.

2.This action started in as early as 2002 when the writ of summons was issued.  In this action, the Plaintiffs claim on the basis of an alleged partnership between the Plaintiffs and the Defendants, first of all, for the sum of one third of $5.19 odd million, being the alleged undistributed profits for jade stones and jade ornaments sold in the partnership business, and secondly, for one third of a sum of about $1.3 million, being what is called the “Left over Jade” which was unsold in the partnership business.  And the transactions in question were alleged to have occurred in the period of a few years in the early 1990’s.

3.In the course of the opening by Mr Chan, Counsel for the Plaintiffs, at various stages, he produced one by one, three tables.  The first table consisted of Tables 1A to 1H, altogether eight pages.  Those Tables set out the particulars about the sale proceeds of the jade ornaments with the amounts of the sale proceeds and the page references in the Bundles which are before the court.  Table 2 concerns distributions of jade ornaments sale proceeds, and Table 3 concerns the Left over Jade.  Both Tables 2 and 3 also set out the various amounts and the page references to the Bundles before the court.

4.I have been shown the originals of six notebooks or ledgers which are kept by the Plaintiffs, and two notebooks or ledgers kept by the Defendants.  I believe that all the pages from all these notebooks or ledgers had been copied and put into Bundles B1, B2 and B3 before the court.

5.In the course of the opening by Mr Chan, I interrupted him quite a lot, the reason was that I was unable to discern from the pleadings and from the witness statements as to how various figures had been made out and the source of the figures representing the sums which were claimed by the Plaintiffs, and Mr Chan in response to my questions, first of all took me to the Tables and then the pages in the Bundles referred to in the Tables and then helped me to work out the sums which had been set out in some of the pleadings and in the witness statement of the 1^st Plaintiff which was filed in April 2009.

6.The pleadings and the witness statement of the Plaintiffs do not have page references to the documents which have been put before the court and to the documents contained in Bundle B1.  I can see that most if not all of the entries are hand-written, I believe all by the 1^st Plaintiff.  They contain abbreviated descriptions and various figures and calculations. 

7.In short, the documents, the entries in the notebooks or ledgers produced by the Plaintiffs, do not speak for themselves. Thus, I had to be taken through some of the entries, which were then correlated to the Tables by Mr Chan before I was able to understand some of the figures, which represented the claims by the Plaintiffs.

8.What is more important is that the working out of such figures representing the claims are not contained in the 1^st Plaintiff’s witness statement, which is the only evidence in court except for the Plaintiff’s oral testimony to be given, subject to cross-examination.

9.Mr Koo applies for an adjournment on the basis that it is unfair on him and his clients for such material, namely, the three Tables to be produced by the Plaintiffs at such a late stage.  He says he needs time to take instructions from his clients for the purposes of cross-examination and also for the purpose of preparing evidence in reply.

10.Furthermore, he says that some of the documents referred to in the Tables obviously do not just relate to transactions between the Plaintiffs and the Defendants.  As an example, he refers to Bundle B1 page 178 on which page the name of a company or firm by the name of （周楠公司）appears. Nobody knows what that is about and as a result the figure which Mr Chan tries to extract from that page, namely, the figure of $655,960 will need to be explained in evidence, and at this juncture, nobody knows what the explanation is. 

11.I have casually looked through some of the other pages in Bundle B1 and I take as an example page 76 which has entries relating to （溫志輝）and （溫振華）;（志輝）is apparently the name of a company or firm and against （志輝公司）there is a figure “40%” next to it.  I appreciate that this is not one of the pages referred to in any of the Tables, but this is a page out of the notebook which has been produced by the Plaintiffs, and which is being relied on by the Plaintiffs, so this is an example of why it is necessary for the Plaintiffs either in the pleadings or in the witness statement to point out exactly which page, which document and which entry or entries are being relied on in arriving at the figures representing the Plaintiffs’ claim.

12.It has been pointed out to me by Mr Koo that the Request for Further and Better Particulars was made as early as 2003.  I refer to the Further and Better Particulars of the Statement of Claim, which were filed on 11 March 2003 on page 82 of Bundle A.  It appears that the Defendants were asking for Further and Better Particulars of the sum under paragraph 15 of the Statement of Claim, the sum of at least $5.197 million odd dollars, being the outstanding undistributed profits and the Plaintiffs’ entitlement to the sum of $1.732 million odd dollars as alleged.  The request was for the Plaintiffs to state all facts and matters intended to be relied upon to support the Plaintiffs’ allegations including but not limited to the details of the calculation and identify the documents relied on.  The answer to that request was simply “please see paragraphs 14 and 15 of the Statement of Claim, for the Plaintiffs’ calculation (please see Annexure A)”.  Attached to those Further and Better and Particulars of the Statement of Claim is Annexure A, which consists of a single page appearing on page 86 of Bundle A.  It is a hand-written chart which I am told was made by the 1^st Plaintiff containing various figures, but one thing to note is that there is no figure corresponding to the pleaded figure of $5.197 million odd dollars.  I believe that that figure had been changed to the figure of $4,280,366.  There is no explanation as to how the change came about and, what is more important, this page 86 does not make reference to any pages in the documents, and there is no break-down of the various figures contained on this page.  Unfortunately, the matter was not followed up by the Defendants by asking for Further and Better Particulars of these Further and Better and Particulars.

13.The practice of the courts have for a number of years, especially after commencement of the Civil Justice Reform, for parties in a trial simply to ask their own witnesses to adopt the witness statements already filed as evidence-in-chief, and then it would be up to the other side to cross-examine the witnesses.  Such a practice is necessarily based on the premise that the witness statement of a party, in this case the Plaintiff, would contain all the materials sufficient to enable the Plaintiff to prove his case.  But in the present case, I find that if Mr Chan were simply to ask the 1^st Plaintiff to adopt his witness statement as his evidence-in-chief, it would not constitute sufficient proof of the case which was pleaded, because the court at the end of the day would not be able to extract from the pages of documents in the Bundles to find that the Plaintiff’s case had been proved.

14.If on the other hand, Mr Chan were to be allowed to lead the 1^st Plaintiff in-chief and ask him to give evidence on matters which are not contained in his witness statement already, then it would mean that we are back to the old practice of witnesses substantially supplementing their witness statements in chief and one implication of that is the Defendants would be taken by a surprise.  Such a process is time-consuming, and it is not in the interest of justice that that should be allowed.  The spirit of the Civil Justice Reform is that the parties should prepare their respective cases well and well in time before the commencement of the trial, so that the issues in a case can be narrowed down and judicial time can be saved.

15.In short, I do not think that the case is really ready for trial, and in these circumstances, I grant the application by Mr Koo for an adjournment.  What I propose to do is to order that this case be adjourned to a date to be fixed in consultation with Counsel’s diaries, and it is not necessary for this case to come back before me, because I have not started to hear the evidence yet, so the case is not part heard.

16.I will give liberty to the parties to file further witness statements, the Plaintiffs within 21 days and the Defendants within 21 days thereafter.

17.It is important that the parties should take this opportunity to put their respective houses in order, because what I am also going to order is that the witness statements filed in court should stand as evidence-in-chief unless otherwise ordered by the trial judge whoever he may be.

18.As regards the question of costs, I take the view that basically the responsibility is on the Plaintiffs to provide particulars of the claim and to put in sufficient evidence to prove the claim but on the other hand it cannot be said that the Defendants are totally free from blame because as early as 2003 the Defendants asked for further and better particulars which were supplied to a certain extent by the Plaintiffs, namely, by the production of Annexure A appearing on page 86 of Bundle A.  By not pursuing the matter further, the Defendants might have given the false impression to the Plaintiffs that sufficient particulars had been given and it may be that it was for that reason that the Plaintiffs did not feel that they were obliged to give further and better particulars or to give the necessary documentation references in the witness statements filed later.

19.I think, all in all, a fair order would be that I make the costs of the adjournment the Defendants’ costs in the cause.

20.I give the following directions:-

(1)   the case is to be adjourned to a date to be fixed before a bilingual judge in consultation with Counsels’ diaries;

(2)   the estimated length of the trial to be 7 days;

(3)   the Plaintiffs to file a witness statement or witness statements within 21 days;

(4)   the Defendants to file a witness statement or witness statements within 21 days thereafter;

(5)   no further witness statement thereafter without leave of the court;

(6)   all witness statements to stand as evidence-in-chief unless otherwise ordered by the trial judge;

(7)   a case management conference to be fixed before the trial judge at least 10 days before the scheduled date of the trial in a half-hour appointment; and

(8)   the costs of the adjournment to be the Defendants’ costs in the cause.

Mr Julian Chan, instructed by Messrs Ma Tang & Co., for the Plaintiffs

Mr Ernest Koo, instructed by Messrs Adrian Yeung & Cheng, for the Defendants