潘景鴻 v. Leung Tak Sing,Peter t/a Archinteriors

DCCJ4446/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4446 OF 2011

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DECISION

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1.This is an application by the defendant for leave to file and serve his 2^nd supplemental witness statement. The summons was taken out on 10 January 2014.

Background

2.According to the Amended Statement of Claim filed on 24 May 2012, the plaintiff is claiming for outstanding payment for renovation works done between September 2010 and March 2011 at the request of the defendant in the sum of HK$378,000.

3.The plaintiff’s claim is based on an agreement evidenced by quotation no 100916-2 dated 24 September 2010 (“the Quotation”) and 3 invoices nos 110221, 110222 and 110318 respectively dated 21 February 2011, 22 February 2011 and 18 March 2011.  The plaintiff’s case is that works amounting to HK$778,600 under the 3 invoices had been done for the defendant but the defendant had only paid HK$400,000.  Therefore, the defendant owes the plaintiff HK$378,600.

4.According to the Re-Amended Defence & Re-Amended Counterclaim filed on 11 April 2013, the defendant’s case is that some of the plaintiff’s works were outside the scope of the Quotation and the plaintiff had delayed in carrying out the works.  The defendant counterclaims HK$181,000 against the plaintiff as loss and damage caused by the plaintiff’s delay.

5.In the Re-Amended Defence & Re-Amended Counterclaim, the Re-Amended Reply & Defence to Re-Amended Defence & Re-Amended Counterclaim filed on 25 April 2013 and the Rejoinder filed on 24 July 2013, the defendant and the plaintiff refer to the items of works listed out in the plaintiff’s 3 invoices.

The present application by the defendant

6.The defendant had already filed his witness statement on 30 November 2012 and his 1^st supplemental witness statement on 31 May 2013.  In the 1^st supplemental witness statement, the defendant spelt out his positions in respect of the items of works listed out in the plaintiff’s 3 invoices.  In this application, the defendant is applying for leave to serve his 2^nd supplemental witness statement to correct the mistakes he had made in his 1^st supplemental witness statement and provide additional comments in relation to the items of works.

The plaintiff’s position

7.The plaintiff opposes the defendant’s application to file and serve his 2^nd supplemental witness statement.  Solicitor for the plaintiff Ms Chiu has prepared detailed written submissions consisting of 6 pages to explain why the filing and serving of the 2^nd supplemental witness statement should not be allowed.

8.Firstly, Ms Chiu submits that the application is late.  The trial of the action will take place on 10 February 2014 with 4 days reserved.  The defendant in his Listing Questionaire dated 19 June 2013 confirmed that all witness statements had been served.  At the Case Management Conference on 5 September 2013 and the Pre-Trial Review on 2 December 2013, the defendant confirmed that there was no outstanding direction and application.  The defendant’s present application is contradicting his previous position.

9.Ms Chiu cites the case of Liu Chen v Chan Poon Wing & Anor, HCPI 779 of 2006 in which Master Marlene Ng dealt with a plaintiff who was making a late application for filing of evidence.

10.Secondly, Ms Chiu states that the 2^nd supplemental witness statement is incompatible with the defendant’s pleadings.

11.Thirdly, Ms Chiu says the 2^nd supplemental witness statement raises new allegations and the plaintiff needs to investigate.

12.Fourthly, Ms Chiu submits that the 2^nd supplemental witness statement is inconsistent with the defendant’s 1^st supplemental witness statement.

13.Ms Chiu relies on the case of Commerzbank Aktiengesellschaft (Hong Kong) v Peregrine Fixed Income (in Liquidation), CACV 296/2002, where the Court of Appeal upheld Deputy Judge Woolley’s decision not to allow the defendant’s witness to file a supplemental witness statement which contradicted the witness’s original statement.

14.Fifthly, Ms Chiu states that the 2^nd supplemental witness statement contains the inadmissible opinion of the defendant when he says some items of works “should be included” in the items listed out in the Quotation.  Ms Chiu particularly relies on paragraph 38/2A/10 of Hong Kong Civil Procedure 2014.

15.Sixthly, Ms Chiu says the plaintiff’s legal team is currently engaged in a trial in the Court of First Instance starting from 13 January 2013 for 12 days.  If this Court allows the defendant to file and serve his 2^nd supplemental witness statement, hardship will be caused to the plaintiff’s legal team.

Discussion

16.The defendant filed his 2^nd Affirmation on 10 January 2014 explaining he had difficulties in matching the items in the Quotation and the 3 invoices.  But there is no good explanation as to why his 1^st supplement witness statement was filed on 31 May 2013 but he only seeks to correct his mistakes and make further clarifications just now.  I must say that I totally agree with Ms Chiu when she says that the defendant’s application is late by any standard.  If this application were to be decided solely on the issue of delay, I believe I would have no hesitation in refusing the defendant’s application.

17.But apart from the defendant’s delay, there are other case management factors that I should take into account. This is a dispute arising from an agreement to perform renovation works.  It is important that the parties clearly set out their respective positions as to which items of works in the 3 invoices are in dispute.

18.Even if I do not allow the defendant’s 2^nd supplemental witness statement, the defendant is entitled at the trial to explain to the Court which parts of his 1^st supplemental witness statement are inaccurate and need to be clarified or supplemented.  As pointed out by the counsel for the defendant Mr Poon, the defendant cannot be asked to confirm and adopt his 1^st supplemental witness statement which contains mistakes and inaccurate information.  The defendant should be allowed to correct his mistakes and clarify.  If I do not allow the defendant’s 2^nd supplemental witness statement, the time for hearing the defendant’s evidence undoubtedly will be lengthened.  The plaintiff will probably need further time to investigate the additional information that just comes out of the defendant in the witness box.  This is an undesirable course to take.

19.As to Ms Chiu’s 2^nd complaint that the defendant’s 2^nd supplemental witness statement is incompatible with the defendant’s pleadings, I would refrain from evaluating the defendant’s evidence at this stage so as to find out whether it is incompatible with the defendant’s pleadings.  This matter is better left at the trial which will start in less than a month’s time on 10 February 2014.  It is sufficient for me to say that if the 2^nd supplemental witness statement is found to be inconsistent with the defendant’s pleadings, this will be entirely a problem for the defendant.  Counsel for the defendant Mr Poon has confirmed in his submissions that no amendment of pleadings would be necessary if the 2^nd supplemental witness statement is allowed.

20.Regarding Ms Chiu’s 3^rd complaint that the 2^nd supplemental witness statement raises new allegations and 4^th complaint that the 2^nd supplemental witness statement is inconsistent with the defendant’s previous witness statement, for the reasons given in paragraph 18 herein, I am of the view that it would be better for the defendant to spell out clearly what mistakes he had made in the 1^st supplemental witness statement and what clarifications and supplements he needs to make now.  If this is done at the trial when the defendant is in the witness box, the plaintiff will have even less time to deal with.  It is more beneficial to the plaintiff if he is made fully aware of the defendant’s positions regarding each and every item of works in the 3 invoices at this stage, rather than at the trial.  If the plaintiff needs to investigate the defendant’s allegations in the 2^nd supplemental statement and make a reply, there is still some time between now and the trial.  I understand that time is tight for the plaintiff.  But it is even more unsatisfactory if this is left until the trial.

21.As to Ms Chiu’s 5^th complaint that the 2^nd supplemental witness statement contains some inadmissible opinion, I note paragraph 38/2A/10 of Hong Kong Civil Procedure 2014 that is cited to me.  While I agree that a witness statement should not contain the personal opinion of a witness, I do not see anything improper if the defendant explains in his 2^nd supplemental witness statement as to why some items of works should not be charged under the agreement between the plaintiff and the defendant.  Ms Chiu’s 5^th complaint is not justified.

22.As to Ms Chiu’s 6^th complaint that the plaintiff’s legal team is currently engaged in a 12-day trial in the Court of First Instance starting from 13 January 2013, I have already indicated that I understand that time is tight for the plaintiff.  As explained before, the matters raised in the 2^nd supplemental witness statement of the defendant should be dealt with now rather than at the trial.  In any event, the 2^nd supplemental witness statement only consists of 4 pages in the form of a table, I believe the plaintiff should have sufficient time to give a witness statement in reply, if so advised.

23.I note the comments made by Master Marlene Ng in Liu Chen v Chan Poon Wing & Anor, HCPI 779 of 2006 regarding the plaintiff’s late application for filing evidence.  At the end of the day, the learned Master allowed the filing of evidence.  I understand that every case should be decided on its own facts, especially when the issue relates to case management.

24.In Commerzbank Aktiengesellschaft (Hong Kong) v Peregrine Fixed Income (in Liquidation), CACV 296/2002 which is cited by Ms Chiu, the Court of Appeal refused to allow the defendant’s witness to file a supplemental witness statement which contradicted the witness’s original statement.  The Court of Appeal was of the view that as the witness concerned would not be attending the trial to give oral evidence, it would be undesirable to allow 2 conflicting statements from the same witness which the trial judge will have no opportunity to clarify from the witness.  This is not the situation in front of us and the case authority is of limited assistance.

25.Another case cited by Ms Chiu is Man Fung Choy v Man Shing Li [2004] 4 HKC 487 where the Court of Appeal allowed the plaintiff to file and serve a supplemental witness statement to correct a mistake in a previous witness statement which was caused by the plaintiff’s solicitors.  In the present case, we are not dealing with mistakes in a witness statement caused by a third party.  As explained in the previous paragraphs, it is better for the defendant to spell out clearly what mistakes he had made in the 1st supplemental witness statement and what clarifications and supplements he needs to make now.  This should not be left at the trial as the plaintiff will be put in a disadvantageous position.

Conclusion

26.In light of the above analysis, I will allow the defendant’s application to file and serve the 2^nd supplemental witness statement.

27.But this does not mean that I am approving the defendant’s conduct of making a late application like this and should not be interpreted as the Court’s readiness to condone late applications of similar nature.  On the contrary, I find the defendant’s conduct disgraceful and unfair to the plaintiff, especially when the defendant did not make this application at the Case Management Conference on 5 September 2013 and at the Pre-Trial Review on 2 December 2013.  The defendant is making this belated application just a month before the start of the trial on 10 February 2014.  Ms Chiu for the plaintiff has filed written submissions of 6 pages and 3 case authorities to oppose the application.  The defendant has put the Court and the plaintiff in a difficult position.  I allow the defendant’s application for the sake of making the trial process smooth.  There is no reason why the defendant should not be penalized by costs and the plaintiff should be given a right to file a witness statement in reply, if so advised.

28.I order as follows:-

(a) Leave be granted to the defendant to file and serve the 2^nd supplemental witness statement of Leung Tak Sing Peter, the defendant herein, as per copy annexed to the defendant’s summons filed on 10 January 2014 on or before 24 January 2014;

(b) Leave be granted to the plaintiff to file and serve a supplemental witness statement in reply, if so advised, on or before 4 February 2014;

(c) The 2^nd supplemental witness statement of Leung Tak Sing Peter and the supplemental witness statement of the plaintiff, if any, do stand as evidence-in-chief of the respective witnesses unless the trial judge directs otherwise;

(d) No further witness statement is allowed without the leave of the Court;

(e) Costs order nisi to be made absolute within 14 days that the defendant do pay the plaintiff the costs of and occasioned by the defendant’s summons taken out on 10 January 2014 in any event, to be taxed on an indemnity basis if not agreed; and

(f) The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.

Ms Chiu Wing Lam, of Robin Bridge & John Liu, for the plaintiff

Mr Kevin Poon, instructed by Yung, Yu, Yuen & Co, for the defendant