Chan Wai Tak v. Chan Mau Ping Alias Chan Mau Ping Tandy and Others

HCA2321/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2321 OF 2009

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BETWEEN

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Before : Deputy High Court Judge Yan SC in Court

Dates of Hearing : 23 and 24 August 2011

Date of Decision : 24 August 2011

Date of Reasons for Decision : 9 September 2011

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REASONS FOR DECISION

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1.On 23 August 2011, the first day of the trial of this action, several matters fell to be dealt with before the plaintiff could open his case. However, for the reasons which are set out below, these matters could not be immediately dealt with, and accordingly, after I had given various directions, I adjourned the hearing until 10 a.m. on 24 August 2011. On 24 August 2011, after these matters had been dealt with and after hearing submissions, I ordered that the costs of and occasioned by the adjournment be borne by the1^st,2^nd and6^th defendants. I now give reasons for my decision.

2.As I have indicated above, several matters had to be dealt with before the plaintiff could open his case.  First, the1^st, 2^nd and 6^th defendants had, on 22 August 2011 (one day before the first day of the trial), issued and filed a summons seeking leave to file the Witness Statement of Chan Wai Fan.

3.Secondly, Mr James Tze, who appeared with Mr Jeffrey Li for the 1^st, 2^nd and 6^th defendants, indicated that his clients might wish to make an application to strike out parts of the Supplemental Witness Statement of the plaintiff which had been filed and served on the previous day.  The reason why the Supplemental Witness Statement of the plaintiff had been filed so late was because a Supplemental Witness Statement of the 1^st defendant had been filed and served late, in early August 2011, and the defendants represented by Mr Tze had therefore consented to the plaintiff filing a Supplemental Witness Statement on the day before the first day of the trial.

4.Thirdly, Mr Lee Tung Ming, counsel for the plaintiff, took issue with 2 new bundles of documents which had been served on 20 August 2011.  These 2 new bundles of documents contained copies of the documents which had been disclosed in a 2^nd Supplemental List of Documents of the 1^st, 2^nd and 6^th defendants filed on 10 August 2011 and served on the plaintiff on 11 August 2011.  A few more documents were added to these 2 bundles in the morning on 23 August 2011.

5.In relation to the first matter, I pointed out to Mr Tze that no affidavit had been made by his clients to explain the lateness of their application for leave to file the Witness Statement of Chan Wai Fan.  Mr Tze accordingly asked that his clients be given leave to file such an affidavit.  Accordingly, I directed that Mr Tze’s clients should file the affidavit in support of the application by 2 p.m. on 23 August 2011 and that the hearing of his client's application be adjourned to 10 a.m. on 24 August 2011.

6.In relation to the second matter, Mr Tze informed me that he had not had sufficient time to take instructions from his clients to confirm whether or not they did in fact wish to make the application to strike out. He asked for more time to do so.  I therefore directed that if the 1^st, 2^nd and 6^th defendants wished to proceed with the application to strike out, they should file and serve by 3 p.m. on 23 August 2011 their summons in respect of this application as well as their skeleton submissions and list of authorities.  This application would also be dealt with on 24 August 2011.

7.With regard to the third matter, as I have indicated above, the majority of the documents contained in the 2 new bundles of documents were disclosed for the first time in the 2^nd Supplemental List of Documents of the 1^st, 2^nd and 6^th defendants filed on 10 August 2011 and served on the plaintiff’s solicitors on 11 August 2011.  Despite the fact that these documents were disclosed for the first time less than 2 weeks before the commencement of the trial of this action, copies of these documents were not supplied to the plaintiff’s solicitors until 15 August 2011, in response to the plaintiff’s solicitors’ request by letter dated 11 August 2011.  Further documents were then added to the 2 bundles in the morning on 23 August 2011, the first day of the trial.  None of the documents in the 2 bundles had been referred to in any of the Witness Statements filed on behalf of the defendants.  A further complication was that Mr Tze stated in the course of his submissions that his clients would not in fact be relying on all the documents in the 2 bundles.

8.I agreed with Mr Lee's submissions that it was highly unsatisfactory for the 1^st, 2^nd and 6^th defendants to simply lodge two new bundles of documents without indicating the issues before the court to which such documents relate.  As held by the Honourable Mr Justice Lam in Hong Lok School Limited & Anor v. Chow Sai Yiu & Anor, HCA17139/1999, Unreported, 7 July 2003, it behoves a litigant giving discovery at the eleventh hour to provide the court and the other side with full and accurate information at least as to the following to enable the court to exercise its discretion properly in dealing with possible objections from his opponents:

(a) the reasons why these documents were not disclosed earlier;

(b) the provenance and the makers of these documents;

(c) the relevance of these documents to the issues before the court; and

(d) the availability or non-availability of the makers to attend trial for cross-examination in case his opponents makes an application under section 48 of the Evidence Ordinance.

9.As the only concern which had been raised by Mr Lee to the new documents was that the plaintiff did not know the issues to which they relate, I directed that the 1^st, 2^nd and 6^th defendants supply to the plaintiff’s solicitors and to the court by 2 p.m. on 23 August 2011 a list of the documents in the 2 bundles of documents which they wished to rely upon together with the issue(s) to which each of the documents is relevant.

10.To give the 1^st, 2^nd and 6^th defendants time to comply with my directions, I adjourned the hearing until 10 a.m. on 24 August 2011.  I also reserved the question of the costs of and occasioned by the adjournment to be dealt with on 24 August 2011 after I had heard and considered the two applications of the 1^st, 2^nd and 6^th defendants.

11.Pursuant to the directions which I had given, the1^st, 2^nd and 6^th defendants filed and served the following in the afternoon on 23 August 2011:

(a) the 7^th affirmation of Chan Mau Ping Tandy in support of their application for leave to file the Witness Statement of Chan Wai Fan;

(b) a Summons dated 23 August 2011 in relation to their application to strike out paragraphs 36 to 44 of the Supplemental Witness Statement of Chan Wai Tak and the 8^th affirmation of Chan Mau Ping Tandy in support of this application; and

(c) a document entitled “Counsel’s Submission on the defendants’ Second Documents Bundle”.

The 1^st, 2^nd and 6^th defendants also filed and served a 3^rd Supplemental List of Documents for the purposes of formally providing discovery of the additional documents which had been inserted into the 2 new bundles in the morning on 23 August 2011.

12.Based on the above, I find that the adjournment of the trial was occasioned and necessitated by:

(a) the very late application by the 1^st, 2^nd and 6^th defendants for leave to file the Witness Statement of Chan Wai Fan and the request by them for time to file an affidavit in support of such application;

(b) the very late disclosure by the 1^st, 2^nd and 6^th defendants of the documents disclosed in the 2^nd and 3^rd Supplemental Lists of Documents and the very late supply of copies of such documents to the plaintiff;

(c) the failure by the 1^st, 2^nd and 6^th defendants to supply to the plaintiff full and accurate information relating to the documents disclosed in the 2^nd and 3^rd Supplemental Lists of Documents as should have been supplied pursuant to the guidance given in the judgment of the Honourable Mr Justice Lam in Hong Lok School Limited & Anor v. Chow Sai Yiu & Anor;and

(d) the request by the 1^st, 2^nd and 6^th defendants for time to consider whether or not to apply to strike out parts of the Supplemental Witness Statement of Chan Wai Tak and to file a summons for this purpose.

13.I therefore ordered that the costs of and occasioned by the adjournment should be borne by the 1^st, 2^nd and 6^th defendants.

Mr Lee Tung Ming, instructed by Messrs Anthony Siu & Co., for the Plaintiff

Mr James Tze and Mr Jeffrey Li, instructed by Messrs Christine M. Koo & Ip, for the 1^st, 2^nd and 6^th Defendants

The 3^rd Defendant in person, absent