Yes Profit Investment Ltd v. Mainly Tone Co Ltd

HCA 2656/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 2656 OF 2008

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REASONS FOR DECISION

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1.In this conveyancing dispute in relation to a shop premises in Austin Road, Kowloon, the plaintiff was the buyer and the defendant was the seller.  The trial of this case has been set down for trial to commence on 18 June 2013.  Today was the pre-trial review.

2.By summons dated 23 April 2013, the defendant applied for leave to cross examine Mu Ngai Ching who was the maker of a statutory declaration dated 29 January 2009.  The statutory declaration was disclosed by the plaintiff in June 2011; and hearsay notice in respect of that was filed in May 2012.  In the supplemental witness statement filed on behalf of the plaintiff in October 2012, specific reference was made to that statutory declaration.

3.Upon the recent written invitation by the defendant’s solicitors to the plaintiff’s solicitors to call Mu or to render her available for cross examination, the latter replied that they had “no instruction to call Ms Mu to give evidence at the trial”.  Hence the defendant’s application.  The plaintiff opposed.

4.At the end of pre-trial review hearing, I gave leave to the defendant pursuant to O.38, r.21 of the RHC; and for such purpose liberty to apply for the issue of subpoena.  Here are my reasons.

5.The statutory declaration was made by Mu who was actually the estate agent responsible for putting together the deal between the parties in the present case.  It contains her evidence of her involvement and representations in the capacity as the estate agent made to the parties up to the abortion of the deal in August 2007.

6.When the plaintiff sought to file a supplemental witness statement (which exhibits and refers to the estate agent’s statutory declaration) mentioned above, the defendant opposed to that.  The defendant then complained, among other parts, that parts of the plaintiff’s supplemental witness statement making reference to the statutory declaration were hearsay.  That part of the complaint was not accepted by the court; and those parts remain in the supplemental witness statement eventually filed.

7.What happened above concerned the admissibility of the content of the witness statement making reference to the statutory declaration.  Before me however was the question of introduction of the statutory declaration as documentary evidence.

8.To begin with, the statutory declaration was not a contemporaneous document.  The plaintiff had the estate agent made the statutory declaration in January 2009 shortly after and obviously for the purpose of this action commenced in December 2008. Getting the estate agent to make a statutory declaration may be neutral.  But as soon as it was contemplated that the estate agent’s evidence would be required at the trial, attempt to still rely on her statutory declaration as if it were documentary evidence became problematic.

9.O.38, r.1 of the RHC requires the evidence of witness as to fact to be proved by the examination of witness in court.  This general rule is not to be circumvented easily. If whether evidence is admissible by way of affidavit at the trial rests upon the court’s discretion under O.38, r.2, a statutory declaration should in no way be different.

10.The question of whether the defendant should have the opportunity to cross examine the estate agent on effectively her statement as to fact prepared for this action stands to be considered differently from that of merely whether a contemporaneous document is admissible as hearsay evidence.  O.38, r.21 allows a party to seek leave to cross examine the maker of a statement which the other party intends rely on as hearsay evidence.

11.Time implication was considered; and the trial could still proceed as scheduled.

12.I ordered costs of the application to be in the cause.

13.I made other directions during the same pre-trial review hearing which were not controversial.

Mr James LEE, instructed by Messrs B Mak & Co for the plaintiff

Mr Andy HUNG, instructed by Messrs Hampton, Winter & Glynn for the defendant