Ng Pok Leung and Another v. Ng Pok Man and Another

DCCJ 2552/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2552 OF 2012

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DECISION

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Introduction

1.As directed under my order dated 13 September 2013, the plaintiffs issued a summons dated 18 September 2013 applying for leave to file and serve:-

(1)  the 2^nd Witness Statement of 曹漢樑 (“Cho”);

(2)  the 3^rd Witness Statement of 吳麗霞 (“Fiona Ng”); and

(3)  the plaintiffs’ Supplemental List of Documents and Notice of Hearsay Evidence relating to all the documents exhibited to the said Witness Statements.

2.Cho is the brother-in-law of the plaintiffs and the 1^st defendant, and the husband of their eldest sister.  He is a witness to be called on behalf of the plaintiffs.

3.Fiona Ng is the youngest sister of the plaintiffs and the 1^stdefendant. She is also a witness to be called on behalf of the plaintiffs.

4.The applications under the summons are late. The action has been set down for a six-day trial commencing on 6 November 2013.

Relevant legal principles

5.Guidance for dealing with late applications for the filing of additional witness statements has been given by Bharwaney J in Parsad v Great Wealthy Engineering Co Ltd [2012] 3 HKLRD 705.  At paragraphs 6 and 7, the learned Judge had this to say:-

“6. Whilst the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, and which must include the right of a party to rely on admissible, relevant and probative factual evidence, the Court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the late application. These matters have to be considered and weighed in the light of and against the underlying objectives of Civil Justice Reform to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties.

7. It is not possible to lay down guidelines to cover and cater for every possible situation that may give rise to a late application for leave to rely on a witness statement; however, the Court would have to carefully weigh, in each case, the relevance and probative value of such a witness statement against the potential disruption to trial, prejudice to other parties, and the objectives of civil justice reform...”

Discussion

6.On the basis of the principles set out above, I agree with Ms Deanna Law, counsel for the plaintiffs, that the court should exercise its discretion to allow the current applications for the following reasons.

7.First, bearing in mind the court’s primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties, the present application would assist the court in coming to a just resolution of the dispute.

(1)  The main purpose of the 2^nd Witness Statement of Cho is to exhibit certain photographs which support his assertion at paragraphs 3 and 4 of his 1^st Witness Statement that he would often attend dinners at the Ng family’s property at Kwun Chung Street, and that he shared a cordial relationship with the Ng family.  Cho’s additional evidence is clearly relevant in resolving the dispute between the parties; and

(2)  The main purpose of the 3^rd Witness Statement of Fiona Ng is to exhibit 2 certificates and pages of her passport which show that she had been away from Hong Kong during various periods in 2001 to 2002 and did not live in the property in question in 2001 to 2002 with her boyfriend as alleged by the 1^st defendant in his Supplemental Witness Statement.  Her additional evidence again goes to the subject matter of this case.

8.Second, the delay in the present case is not significant and I am unable to see any serious prejudice to the defendants.

(1) It was only upon review of the 1^st defendant’s 2^nd  Supplemental Witness Statement on 3 September 2013 when Cho became aware of the 1^st defendant’s allegation that Cho did not have a cordial relationship with the Ng family.  He therefore searched through his computer and photograph albums and found the photographs exhibited to his draft 2^nd Witness Statement;

(2) Fiona Ng explained that between 27 June 2013 and about 5 September 2013, she was unable to locate from her residence any documents to show that she was attending educational courses outside Hong Kong for certain periods in 2001 and 2002.  However, on about 6 September 2013, she attended her safe deposit box at the bank and found her expired passport and 2 certificates of attendance, which have been exhibited to her draft 3^rd Witness Statement; and

(3)  The defendants can rebut the additional evidence of Cho and Fiona Ng through further Supplemental Witness Statements in reply.  In light of the content of the Witness Statements in question, it does not appear to me that new evidence will have to be sought or much further investigation will have to be conducted on the part of the defendants.  Indeed, the 1^st defendant, in his Affirmation dated 27 September 2013 filed in opposition to the summons, was able to comment on the photographs sought to be introduced under the 2^nd Witness Statement of Cho. 

9.Third, the trial dates are unlikely to be disrupted.  The trial is not due to take place until 6 November 2013.  There ought to be sufficient time for the defendants to prepare further witness statements in reply.  No new issues are raised by the Witness Statements and the issues in question are straightforward issues of fact.  Cho and Fiona Ng will be cross‑examined as to their credibility in any event.

Conclusion

10.For the above reasons, I would allow the plaintiffs’ applications under the summons.

11.I will now hear the parties on the proper form of the order to be made and the question of costs.

(Discussion re order and costs)

12.I make an order in terms of paragraphs 1, 2 and 3 of the summons, save that in the first line of paragraph 3, the words “to be” should be changed to “be to”.

13.Leave be to the defendants to file and serve further supplemental witness statement(s) in reply to the 2^nd Witness Statement of曹漢樑and the 3^rd Witness Statement of 吳麗霞on or before 25 October 2013.

(Submissions re costs)

14.I order that:-

(1)  Costs of and occasioned by the summons be to the defendants in any event, such costs to be taxed if not agreed; and

(2)  Costs of the hearing today be to the plaintiffs in any event, such costs to be taxed if not agreed (with certificate for counsel).

15.In Lessy SARL v Pacific Star Development Limited [1996] 2 HKLR 1, the court stated that:-

“The rationale behind differentiating these two sets of costs is not to encourage the other side who has decided to resist an application to amend to have a try-on. Otherwise the resisting party would be under an impression that, win or lose, they will get their costs anyway. The resisting party should be deterred to adopt such an attitude. …”

16.In my view, these comments are fully applicable to the applications before me.

Ms Deanna Law, instructed by Danny Lau & Lam, for the plaintiffs

Mr Gary Lam, instructed by Haldanes, for the defendants