Aspial Investment Ltd and Another v. Mayer Corporation Development International Ltd

CACV 162/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 162 OF 2012

(ON APPEAL FROM HCA NO. 238 OF 2012 AND HCCL NO. 3 OF 2012)

________________________

HCA 238 /2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 238 OF 2012

________________________

BETWEEN

________________________

HCCL 3 /2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO. 3 OF 2012

________________________

BETWEEN

(Consolidated by Order of the Honourable Mr Justice Reyes
dated 22^nd day of March 2012)

________________________

________________________________________________

JUDGMENT ON APPLICATION TO ADDUCE FURTHER EVIDENCE

________________________________________________

Hon Fok JA (giving the Judgment of the Court):

1.In this appeal, the appellant (Mayer BVI) seeks to overturn the judgment of Reyes J dated 16 July 2012. Today is the first day of the appeal hearing.

2.By a summons dated 12 April 2013 (and filed on 15 April 2013), the appellant seeks to adduce fresh evidence on the appeal in the form of two handwriting experts’ reports to support the authenticity of the signature of one Alex Ku on a Custodian Agreement allegedly executed by him and a Mr Wang Ing Jye on 19 June 2009.  The Judge was not persuaded on the appellant’s evidence that the Custodian Agreement was authentic (§169) and rejected it as unreliable, finding that, on a balance of probabilities, the document was “a fake” (§171).

3.It is common ground that, in order for the Court to have discretion to admit further evidence on the appeal, it is necessary for the appellant to satisfy the conditions in Ladd v Marshall[1] summarised in Hong Kong Civil Procedure 2013 at Notes 59/10/8 to 59/10/11.

4.The summons to admit further evidence is supported by two affidavits of Mr Lai Yeuh Hsing and an affirmation of Mr Wang and opposed by an affidavit of Ms Lui Kit Fong, the solicitor acting for the 3^rd defendant (Mr Lam Chin Chun).

5.Counsel for the appellant, as well as counsel for the three groups of respondents, namely the 1^st and 2^nd defendants (Alliance Financial Intelligence and Mr Charles Chan), the 3^rd defendant (Mr Lam) and the 4^th and 5^th defendants (Bumper East and Aspial Investment) have addressed the Court in their skeleton submissions on the question of whether the Ladd v Marshall conditions are satisfied.  We have heard further today from Ms Teresa Cheng SC on behalf of the appellant.

6.We do not accept that condition 1 of Ladd v Marshall is satisfied in the present case. In our view, the further evidence now sought to be adduced could with reasonable diligence have been obtained for use at the trial. It is clear from the correspondence exhibited by Ms Lui that, before trial, there was already an issue between the parties as to the authenticity of the Custodian Agreement.  The potential need for the appellant to adduce expert handwriting evidence to support the authenticity of Mr Ku’s purported signature on the document would have been self-evident before trial.  Although the original of that document was in the possession of Mr Wang and he was apparently reluctant to part with it to the appellant, we note that he was a witness for the appellant at trial and we do not accept that had reasonable diligence been exercised a handwriting expert’s report on the document could not have been obtained for use at the trial.  Even if Mr Wang was reluctant to part with possession of the document to Mr Lai or Mayer BVI, there is no good reason why steps were not taken to obtain a handwriting expert’s report on the document without necessarily requiring Mr Wang to surrender it to the appellant, for example by requesting Mr Wang to obtain the report himself upon an indemnity of the appellant.  There is no evidence as to whether any such possibility was considered or put to Mr Wang.

7.Turning to conditions 2 and 3 of Ladd v Marshall, it is material to note that the further evidence sought to be adduced is in the form of an expert opinion as to the authenticity of Mr Ku’s purported signature on the document.  It is axiomatic that experts may disagree and, for reasons that I will address in a moment, there has been no opportunity given to the respondent parties to consult or obtain their own expert handwriting evidence in response.  There are two reports which the appellant seeks to adduce, namely the August Report and the September Report.  The August Report is expressed to be a Preliminary Report and in its terms is somewhat qualified.  The September Report was, until Mr Lai filed his second affidavit in support of the summons under consideration on 10 May 2013 (i.e. last Friday), inadmissible by reason of its non-compliance with O.38 r.37C and O.41A r.7.  Although those defects have now been cured, it is an indisputable fact that this was only done very late in the day.  As I have already intimated, another expert may take a different view and the lateness of the application has clearly deprived the respondents of any opportunity to obtain such contrary evidence.  On balance, given the necessarily inconclusive nature of the evidence, we are doubtful that, regardless of condition 1 of the Ladd v Marshall test, conditions 2 and 3 are satisfied in respect of the present application.

8.There is a further significant factor which, in our view, weighs heavily against the exercise of discretion to admit the further evidence.  That is the patent lateness of the application.  As I have mentioned, the judgment appealed against is dated 16 July 2012.  The notice of appeal is dated 19 July 2012.  The two handwriting experts’ reports were obtained in August 2012 and September 2012 respectively.  Yet, it was only on 12 April 2013 that the summons to adduce further evidence was issued and it was only filed on 15 April 2013 in respect of an appeal which was fixed to commence today, 14 May 2013, less than one month later.  No satisfactory explanation has been provided for the lateness of the summons.  We do not accept that it was reasonable for the appellant to await the completion of any investigations by the Commercial Crime Bureau into the genuineness of the Custodian Agreement before issuing this application.  The application to adduce further evidence on appeal is wholly independent of that police investigation.

9.For these reasons, we dismiss the appellant’s summons to adduce further evidence in the form of two handwriting experts’ reports with costs to the respective respondents.

Ms Teresa Cheng SC & Mr Adrian Lai, instructed by K & L Gates, for the Defendant in HCA 238/2012 and the Plaintiff in HCCL 3/2012 / Appellant

Mr Simon Chiu & Mr Timothy Wong, instructed by Hastings & Co., for the 1^st & 2^nd Defendants in HCCL 3/2012 / 1^st & 2^nd Respondents

Mr Edward Chan SC & Mr Lee Tung Ming, instructed by Fred Kan & Co., for the 3^rd Defendant in HCCL 3/2012 / 3^rd Respondent

Mr John Litton, Mr Fredrick H F Chan & Mr Eric Chow, instructed by Samuel L.C. Yang & Co., for the 1^st & 2^nd Plaintiffs in HCA 238/2012 and the 4^th & 5^th Defendants in HCCL 3/2012 / 4^th & 5^th Respondents