Yui Chung Yin v. Ng Kit Sum

HCA 1826/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1826 OF 2009

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Before: Hon Au-Yeung J in Chambers

Date of Hearing: 1 November 2012

Date of Decision: 1 November 2012

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D E C I S I O N

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1.For the discovery summons there are two classes of documents sought. On the bank statements, notwithstanding spending about half an hour on this class of documents, Mr Ng is not able to convince me that they are relevant. Bank statements will show the date for the amount which the plaintiff had paid the defendant. It would not show what deliveries the defendant had made to the plaintiff, or that the plaintiff had not paid for the same.

2.There is now no dispute as to the amounts the plaintiff had paid the defendant for as set out in the schedule.  I cannot see how discovery of the bank statements can advance or destroy any party’s case.  The extra work to be entailed in the discovery would be totally cost wasting.

3.As for the sales records, again I am unable to see how the plaintiff’s sales to its own customers will have any bearing on the core issues in the present case identified by Mr Ng.  There is no assertion from the defendant that the plaintiff only sold what it bought from the defendant.  In fact, on the evidence, at least Mr Ching had been one other supplier of the plaintiff. Moreover, the sales records would include a lot of other information to which the defendant is not entitled, for example, particulars of the customers which may constitute commercial confidential information.

4.During the course of submission, Mr Ng has tried to persuade the court that what the defendant wants is not just the sales records but also the stock records of the plaintiff or the purchase records of computers from the defendant.  In my view, it is up to an applicant to formulate the precise category of documents which they wish to seek on specific discovery, otherwise an opponent may be caught and be in contempt of court for failing to produce the necessary documents. 

5.In the present case, I do not even see the defendant formulate the proper class of documents for the court to consider.  I am not prepared to grant specific discovery without the precise terms of the class of documents placed before me. In any case, the application for discovery was made at too late a stage, post-PTR.  There is no valid explanation for the delay.  The defendant’s alleged concentration on mediation or settlement cannot hold water because settlement had ended a long time ago. 

6.I dismiss the application for specific discovery.  

7.In relation to the application to file further witness statements, there are two witness statements which the defendant wants to file; firstly, his own witness statement and, secondly, that of Mr Ching. 

8.Mr Poon, counsel for the plaintiff, has identified those parts of the defendant’s witness statements to which he has no objection.  These are paragraphs 25 to 28.  I consider that, logically speaking, paragraph 24 ought to be included as well. 

9.As for the rest of the witness statement of the defendant, I do not see any reason why the court should permit the defendant to put in a witness statement at such a late stage when it contains repetition and a lot of other matters that purport to fill in the holes.  There is no valid explanation as to why an application could only be made at this late stage.  One has to bear in mind that the last witness statement prepared by the plaintiff was on 25 August 2011 and the last witness statement from the defendant’s side was 17 February 2012. There have been ample opportunities before this application for the defendant to put his house in order.  I do not see why, at a late stage like this, the defendant should be given another round to do so.

10.In relation to the witness statement of Mr Ching, firstly, it purports to adduce evidence of something which is not relevant to this action, ie, the relationship between Mr Ching and the plaintiff which effectively was the subject of the District Court action. Secondly, it purports to produce the settlement order in the District Court action, to which there is no dispute.

11.I do not see why costs need to be incurred on such a witness statement at all.  What is not relevant to this action should not be adduced.  And even if, according to the defendant, the first part related to evidence relevant to the present action, there is no valid explanation as to why Mr Ching’s witness statement needs to be put in at this late stage.

12.As to the second part concerning the settlement in the District Court action, Mr Poon does not dispute that, in fact, the settlement order can be put in evidence by consent and even if not, by brief examination-in-chief of Mr Ching at the trial.  The production of yet another witness statement from Mr Ching is entirely wasting of costs. 

13.In summary, I permit the defendant to adduce paragraphs 24 to 28 of the third supplemental witness statement.  I disallow the putting in of Mr Ching’s witness statement subject to the fact that the District Court consent order can be disclosed to the trial judge. 

14.The amendment summons was taken out by the defendant, again, late in the day.  There is no valid reason why the plea of forgery cannot be put in earlier.  That is a serious plea.  Of course, the defendant had, right from the start, disputed the entry into of the written agreement, but it is different to alleging forgery.  Mr Ng, for the defendant, has informed the court that his client is not going to adduce expert evidence, but that does not preclude the plaintiff from seeking directions for filing of expert evidence and will not preclude the court from giving a direction to that effect.  Even if no expert evidence is required, the late amendment may entail other amendments to the pleadings and perhaps even witness statements or other discoveries.  It is not appropriate these days to allow such substantial amendment six weeks before the trial.

15.In the premises, I dismiss the application for amendment. 

(Submissions on costs)

16.Seven days for the defendant to file and serve the third supplemental witness statement of the defendant.

17.I formally order costs to be to the plaintiff on all three summonses.

Mr Vincent Poon, instructed by William Lam & Co, for the plaintiff

Mr Felix Ng, instructed by Hom & Associates, for the defendant