Sze Wai and Another v. Hui Wai Shing

HCA 2396/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2396 OF 2007

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AND

HCA 1348/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1348 OF 2009

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Before: Hon Chung J in Court

Date of Hearing: 11 July 2011

Date of Decision: 11 July 2011

Date of Handing Down Reasons for Decision: 14 October 2011

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REASONS FOR DECISION

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Introduction

1.On the first day of the trial (scheduled to last for 8 days), both parties applied for leave to file supplemental witness statements.  The application of Ms Sze Wai (“Sze”) was unopposed but that of Mr Hui Wai Shing (“Hui”) was.

2.After hearing the parties’ submissions, I refused Hui’s application.  Below are the reasons for the decision.

3.In order to better understand those reasons, a summary of the litigation history has to be given:-

(a) the actions were respectively commenced by Sze and Hui in November 2007 and June 2009;

(b) directions for filing witness statements were given in March 2010;

(c) leave to set down was given in June 2010 (the notice of setting down was dated 2 August 2010);

(d) the pre-trial review was held in April 2011.

Hence, Hui’s application was made about 11 months after setting down (August 2010) and about 3 months after the pre-trial review.

4.The gist of the parties’ respective claims in these actions has been summarized in the judgment handed down on 22 July 2011 (especially at para. 2, 5 and 7 to 9 thereof).

Hui’s Application for Leave

5.Hui’s supplemental witness statement is principally concerned with a judgment obtained by Sze against him in the Zhuhai Intermediate People’s Court in 2007 and the enforcement of that judgment.

6.He stated that the judgment was based on a written mortgage agreement he executed in Sze’s favour (which he denied).  The underlying debts amounted to approximately RMB10 million.

7.The supplemental witness statement also states that the mortgaged properties have been sold by auction.  In all, Sze obtained total payment of about RMB13 million.

Discretion

8.Sze opposed Hui’s application essentially on two grounds: delay and lack of relevance.

9.Hui has totally failed to explain why the application for leave was only made on the first day of trial.  The Civil Justice Reform was introduced in 2009.  It aims at promoting, among other things, general efficiency in civil litigation, both as regards costs and as regards time.  The law generally requires vigilant compliance with procedural requirements (especially as regards time).

10.But even leaving aside considerations arising out of the Civil Justice Reform, if leave were given to Hui, there is a risk the trial would have to be adjourned to enable Sze to consider whether (and if so, how) to respond to the supplemental witness statement. 

11.Sze’s second ground of opposition is that, even if the supplemental witness statement were filed, because the total amount involved in her claim was about $22.6 million, a sum of about $7 million (22.6 million – 15.6 million (being the approximate equivalent of RMB13 million)) would still be owing to her after taking into account the amount recovered by Sze in the Mainland.

12.On the other hand, Hui contended that the supplemental witness statement may be relevant to the discretionary relief of specific performance sought by Sze.

13.Having considered the matters set out above, I concluded that Hui’s contention is insufficient to tip the balance in his favour.

Mr Kenny Lin, instructed by Messrs Y C Lee, Pang, Kwok & Ip, for the 1^st Plaintiff in HCA 2396/2007 and the Defendant in HCA 1348/2009

Mr Raymond Lau, instructed by Messrs Johnny K K Leung & Co., for the Defendant in HCA 2396/2007 and the Plaintiff in HCA 1348/2009