Cheung Wei Man Vivien And Another v Centaline Property Agency Ltd And Others

HCA 286/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 286 OF 2000

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D E C I S I O N

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1. There are a couple of applications before me. Directions have been made by consent for the future conduct regarding the summons for discovery taken out by the 2nd and 3rd Defendants. In respect of the withdrawal of admissions by the 1st Defendant and the 2nd and 3rd Defendants, the Plaintiff did not oppose leave being granted and I have made the orders granting the Defendants leave to withdraw their respective admissions at the hearing on 15 September 2003. The only outstanding question is costs of the applications. The only substantive dispute between the parties is about the admissibility of an Affirmation of Tung Chooi Chan ["Tung"] made on 23 June 2000.

Admissibility of Tung's Affirmation ["the Affirmation"]

2. The Plaintiffs wished to rely on the Affirmation at the trial. Instead of making an application under Order 38 Rule 2 for the Affirmation to be read at the trial, they filed a hearsay notice on 31 March 2003 in respect of that document. The Plaintiffs said Tung was outside jurisdiction and therefore could not be called as a witness at the trial.

3. This prompted the Defendants to take out two applications. On 23 May 2003, the 1st Defendant issued a summons asking for, inter alia, an order that the Affirmation shall not be read and/or admitted at the trial unless Tung is available for cross-examination. On 2 July 2003, the 2nd and 3rd Defendants issued a summons asking for, inter alia, that the Affirmation shall not be read and/or admitted as evidence at the trial without leave of the court.

4. Although the Affirmation was a short one, it related to one very important factual dispute between the parties. The Plaintiffs said the 3rd Defendant was present at a site inspection and certain representations were made by him whilst the defence denied that he was present. In the Affirmation, Tung who was a nanny employed by the Plaintiffs at the time of the site inspection, said the 3rd Defendant was present but she did not pay attention to what was discussed.

5. Tung had since then left the employment of the Plaintiffs and returned to live in Malaysia. She was unwilling to come back to Hong Kong to testify. The Plaintiffs contacted her in June 2000 to obtain the Affirmation from her. Since then, the Plaintiffs had not contacted her with a view to secure her attendance at the trial to give evidence. It seems that the idea of taking her evidence by video-link had not been explored by the Plaintiffs although Mr Lo, counsel for the Plaintiffs, told the court that he was instructed that Tung was unwilling to be subject to cross-examination.

6. In my judgment, the proper course a litigant should adopt if he intends to rely on an affirmation or affidavit at the trial without calling the maker is to make an application under Order 38 Rule 2 for directions. This should be done before application is made for the case to be set down as this is a matter pertinent to the readiness of the case for trial. As stated in the commentary at para. 38/2/1 of the Hong Kong Civil Procedure 2002, this is usually dealt with at the hearing of the summons for directions. The commentary continued,

"It is not practicable to make such an order where the evidence will be strongly contested and its credibility depends on the court's view of the witness."

7. As mentioned, the Plaintiffs did not make such an application. Instead, after leave to set down has been granted, they issued a hearsay notice in respect of the Affirmation.

8. In High Fashion Garments v. Ng Siu Tong HCA 12093 of 1999, 5 May 2003, I held that a party cannot rely on Section 47 of the Evidence Ordinance and the new rules as to admission of hearsay evidence to escape from the obligation of producing a deponent of an affirmation for cross-examination. Despite Mr Lo's submissions, I am not persuaded that I should depart from my previous decision. I do not read Rover International v. Cannon Films Sales [1987] 1 WLR 1597 as authority to the contrary. In this connection, my view was supported by Rattee J in Re Dominion International Group Plc [1995] 1 WLR 649 at p. 654G to 655E. Mr Lo failed to advance any argument to suggest that my reasoning in High Fashion Garments, in particular Paragraphs 15 and 16 thereof, was incorrect. Nor did he deal with Sections 47(3) and (4) and 55B(1) of the Evidence Ordinance.

9. I therefore consider that the Plaintiffs could not escape from the principles applicable under Order 38 Rule 2 by resorting to Section 47 of the Evidence Ordinance. In substance, the evidence of Tung contained in the Affirmation was brought into existence by the Plaintiffs solely for the purpose of this action. Given the brevity of the Affirmation, there were a lot of questions that could be raised about Tung's evidence. By way of example, how did Tung learn that the person she saw at the site inspection was the 3rd Defendant? To what extent did the Plaintiffs contributed to the contents of the Affirmation? (I note that in a letter dated 3 June 2003 from the Plaintiffs' solicitors, it was said that the Plaintiffs obtained Tung's evidence and subsequently gave it to their solicitors). These are very pertinent and legitimate questions which the Defendants would be entitled to ask if they were given the opportunity to cross-examine Tung. As I said, Tung's evidence is highly controversial and it is very difficult to assess her credibility without any cross-examination.

10. After taking into account of the matters urged upon me by Mr Lo, including the lack of personal interest of Tung in the subject matter of the litigation, the existence of the other evidence on the same factual dispute, I do not consider it is appropriate to allow the Affirmation to be read as evidence at the trial without Tung being made available for cross-examination. Bearing in mind that Tung has returned to Malaysia, I am prepared to consider hearing her cross-examination through video-link and since it is the Plaintiffs' wish to adduce her evidence at the trial, they should procure her attendance at a suitable venue in Malaysia for cross-examination through video-link. If the Plaintiffs could not comply with that condition, the Affirmation will not be received as evidence at the trial.

11. Even if I were wrong on the effects of Order 38 Rule 2 and Section 47, the same result could be reached. As I have also decided in High Fashion Garments, although the new hearsay evidence regime has further liberalized the rules as to admission of hearsay material, it also provides proper safeguards under Section 48. One of the safeguards is to empower the court to give directions to secure the attendance of a witness for cross-examination under Order 38 Rule 21(2). I do not agree with Mr Lo in his submission that the court's power is so circumscribed that it could not order a party adducing the hearsay statement to procure the attendance of a witness. Although Section 48 refers to the calling of a witness by the party who wishes to cross-examine him, Section 55A of the Ordinance is in my view wide enough to authorize Rule 21(2) to be made. I see no reasons why directions to secure the attendance of a witness could not be made, having regard to the circumstances of a case, to impose such a burden on the party adducing the hearsay evidence. Whether such a direction should be made is of course a...