Vastco Textiles Ltd v. Super Glory Corporation Ltd

HCA1678/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1678 OF 2009

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BETWEEN

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Before: Deputy High Court Judge Mimmie Chan in Chambers (open to public)

Date of Hearing: 11 October 2011

Date of delivery of Decision: 11 October 2011

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D E C I S I O N

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1.The Defendant is seeking to strike out parts of the statement of Tommy Chui filed on behalf of the Plaintiff, as well as parts of the Answer filed by the Plaintiff to the Interrogatories served by the Defendant, on the ground that they are scandalous, frivolous or vexatious, or tending to prejudice, embarrass or delay the fair trial of the action, or as being irrelevant or oppressive, or offending Order 38 Rule 2A of the Rules of the High Court.

2.A witness statement must only contain such material facts as a witness is able to prove of his own knowledge  (reference can be made to paragraph 38/2A/6 of the Hong Kong Civil Procedure).  It must not contain inadmissible evidence, nor any statement of information or belief (even if the grounds and reasons thereof are given).  It must be confined to matters of fact, and not opinion, unless leave to produce expert evidence has been obtained from the Court.

3.The test to whether the material sought to be expunged by the Defendant is whether the parts of the statement or the Answer complained of are material to the issues in dispute and the relief claimed. The Defendant argues that the offending paragraphs are also scandalous, as being inadmissible or immaterial with reference to the relief claimed and the issues in dispute.

4.On the face of the pleadings, the issues in dispute for determination at trial are confined to:

(1) whether Li Dong was orally appointed by the Defendant as its agent to buy goods from the Plaintiff;

(2) whether the Defendant had held out Li Dong as its agent, such that Li Dong had actual, implied or apparent authority to act on the Defendant’s behalf; and

(3) whether the Plaintiff had delivered goods to the Defendant which had accepted the same.

5.In relation to paragraph 6 of the Statement of Tommy Chui, it deals with what Mr Chui believes businessmen in China would generally do for tax or other reasons.  Not only is his belief irrelevant to the Court’s determination of the issues in dispute, but the matters stated are immaterial to the pleaded issues regarding the relationship between the Defendant and Li Dong, and will only cause delay in cross‑examination and the trial.

6.I will strike out the first three sentences of paragraph 6, but will allow the remaining part that deals with Mr Chui’s evidence on the Defendant’s actual dealings and relationship with Mr Huang, whom he claims to be the owner of Li Dong and its alleged associated companies, to remain.

7.In relation to paragraph 7 of Mr Chui’s Statement, this deals with the relationship between the Defendant and Hua Li which is not material to the relationship and the dealings between the Defendant and Li Dong, and between the Plaintiff and the Defendant.  I will only allow the last sentence of paragraph 7 to remain, as it deals with Li Dong and the Defendant, and I will strike out the remainder.

8.In relation to paragraph 11 of Mr Chui’s Statement, I will allow the first sentence to remain, since it is Mr Chui’s evidence of the fact of the dealings between the Defendant and Li Dong, which is relevant to the question of whether the Defendant had appointed Li Dong to be its agent.  In the remainder of the paragraph, Mr Chui states that he has no knowledge of the agreement between Mr Chan and Mr Huang, so the rest of paragraph 11 and the first sentence of paragraph 12, which is speculation and guesswork, should all be struck out. 

9.The rest of paragraph 12 deals with Li Dong’s dealings with Greatest Glory Limited, which has no relevance at all to the matters pleaded.  They will be struck out.

10.For paragraph 13 of Mr Chui’s Statement, I will allow the last sentence to remain, since it is relevant to the dealings between the Plaintiff and the Defendant through Li Dong.  The other parts of paragraph 13 deal with matters of which Mr Chui has no knowledge, and matters of his belief which have no place in a statement.  The same applies for paragraph 16 of his Statement, which will likewise be struck out.

11.In relation to the Interrogatories, Answers to interrogatories should deal with the facts in issue, not statements of belief or information.  The whole purpose of the service of interrogatories is to save costs and to facilitate proof at trial.  Interrogatories cannot be ordered unless they are necessary either for disposing fairly of the cause or matter, or for saving costs.  Interrogatories are generally not allowed when the answers were already provided in affirmations or written statements served.

12.The purported Answer given to paragraph 1(a) of the Interrogatories is simply the first sentence:  the Plaintiff does not know the date when the oral appointment of agency was made before 2006. The rest of the answer simply repeats, or purports to repeat, what is already stated in the Statement of Tommy Chui, which are either not matters of fact known personally to Andre Wong, who served the Answer, or are matters already stated in Andre Wong’s own statement.

13.Paragraph 1(a) of the Answer, apart from the first sentence, is entirely not necessary.  It defeats the purpose and function of Interrogatories.  I will strike out the entire Answer apart from the first sentence.

14.Paragraph 1(c) of the Answer will likewise be struck out, as it is not even an answer to the Interrogatory raised: “By whom of the Defendant was the oral appointment made?”

15.So these are my orders, and since the Defendant has been successful in its application to strike out, I will order that the costs of the application are to be paid by the Plaintiff to the Defendant in any event.

Mr Robin D’souza, instructed by Messrs Reimer & Partners, for the Plaintiff

Mr Ken To, instructed by Messrs Chiu, Szeto & Cheng, for the Defendant