Chan Kung Kee v. Wen Xiaoling

HCA 1635/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1635 OF 2010

BETWEEN

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DECISION

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1.This is the defendant’s application for leave to adduce expert evidence under Order 38 r. 36 RHC. The plaintiff and the defendant mentioned here are the parties in the original action.

2.Mr. B. Poon, counsel acts for the defendant and Mr. K. Lam, counsel acts for the plaintiff.

3.I shall adopt the factual background as stated in Mr. Poon’s written submissions as follows:

(1) It is the gist of the Plaintiff’s (by Original Action) case that the Defendant (by Original Action) owed a sum of HK$3,000,000 pursuant to a Loan Agreement (§§7, 8 & 10 of the Statement of Claim).  On the other hand, it is the gist of the Defendant’s (by Original Action) defence that the HK$3,000,000 was a repayment rather than a loan (§5(d) of the Defence and Counterclaim).

(2) The Plaintiff (by Original Action) relied heavily on the said document as “lender” of the HK$3,000,000 and a “documentary proof” of the loan. (§24 of the Witness Statement of Chan Kung Kee) The Defendant (by Original Action) disputed such loan agreement but rather a receipt to acknowledge the repayment of HK$3,000,000.  (§14 of the Witness Statement of Wen Xiaoling)

(3) It is the Defendant’s (by Original Action) position that the said document was forged (§§10-15 of the Supplemental Witness Statement of Wen Xiaoling).[1]

4.The plaintiff opposes this application.

5.Mr. Lam considers that expert evidence is not necessary.

6.Having considered counsel’s submissions two days ago, I considered that the main issue for this application was that the defendant had not pleaded in the defence that the seal was a forged seal.  As such the defendant is simply not entitled to ask for leave to adduce expert evidence on this issue at the trial.  I had therefore referred respective counsel to the following cases:

a. China Gold Finance Limited v. CIL Holdings Limited & Ors (HCA2900/2001, Mr. Registrar K.W. Lung, 25 September 2012, unreported at para.17-18 and

b. Kwok Chin Wing v 21 Holdings Limited & Others FACV No. 9/2012 delivered on 30 September 2013 at paragraph 21

7.Having considered the above cases, the defendant then filed a summons to apply for leave to re-amend the Amended Defence and Counterclaim.

8.The plaintiff does not oppose the defendant’s application.

9.However, it is revealed that the plaintiff has not pleaded the fact that the oral agreement of the loan of 3 million dollars to the defendant was evidenced by a loan agreement in writing.  The plaintiff only put this fact in the witness statement.

10.Today, the plaintiff proposes to amend the Statement of Claim to plead the loan agreement in writing.  Mr. Lam asks for a 15-minute adjournment to draft the proposed amendments, which are then reduced in writing on a piece of paper.  The defendant has no objection to the proposed amendment.

11.I consider that all these pleading matters should be dealt with in one go today so that the matter may proceed expeditiously.  By agreement of the parties, I shall make an order in terms as follows:

a. Leave be granted to the plaintiff to amend the Statement of Claim as per the draft submitted and to file and serve the same within 3 days from the date hereof;

b. Leave to the defendant to make the consequential amendments on the Amended Defence and Counterclaim, including the proposed re-amendment as per the draft attached to the application in green at paragraph 5f and to file and serve the same within 14 days from the date hereof;

c. Leave to the plaintiff to file and serve the Re-Re-Amended Reply and Defence to Counterclaim, if so advised, within 7 days thereafter;

d. Costs of and occasioned by the plaintiff’s amendment to the Statement of Claim be to the defendant in any event;

e. No order is to be made for the defendant’s summons dated 4 November 2013 and costs of this summons be to the plaintiff, to be taxed if not agreed in any event;

f. Leave to the defendant to withdraw the summons for expert evidence dated 17 October 2013 with costs to the plaintiff, to be taxed, if not agreed;

g. By consent, leave to the plaintiff to set down for trial be set aside;

h. The parties shall obtain Counsel's advice on evidence within 28 days after close of the amended pleadings;

i. All interlocutory applications as may be advised shall be taken out within 14 days thereafter; such applications, if contested, shall be listed before the Registrar for argument;

j. There shall be a Case Management Conference to be fixed at 11:30 am on 12 March 2014.

k. The parties shall be at liberty to set off the costs above;

l. The costs for today’s hearing (1 hour 45 minutes) be in the cause, with counsel’s certificate.

Mr. Kestrel Lam, instructed by C.O. Chan & Co., for the plaintiff (by original action) and the defendants (by counterclaim)

Mr. Billy Poon, instructed by Augustine CY Tong, for the defendant (by original action) and the plaintiff (by counterclaim)