YUKIO TAKAHASHI AND ANOTHER v. CHENG ZHEN SHU AND OTHERS

bjbj HCA 2115/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2115 OF 2004 ____________ BETWEEN YUKIO TAKAHASHI 1st Plaintiff SAN MARINO TRADING COMPANY LIMITED 2nd Plaintiff and CHENG ZHEN SHU 1st Defendant CHINLUCK GROUP LIMITED 2nd Defendant TELFORD ROAD & BRIDGE INVESTMENTS COMPANY LIMITED 3rd Defendant CHINA SCORE INVESTMENTS LIMITED 4th Defendant ____________ Before: Hon Fung J in Court Date of Hearing: 30 May 2008 Date of Ruling: 30 May 2008 __________ R U L I N G __________ The 3rd defendant is applying to re-open its evidence after one day of closing speech by counsel. The 3rd defendant wishes to call the 1st defendant who has settled with the plaintiffs and dropped out from the case. The plaintiffs are suing the 3rd defendant in restitution. The plaintiffs case is that they paid HK$50 million to the 1st defendant who in turn paid the 4th defendant, and the 4th Defendant paid the 3rd defendant. The 3rd defendant s case is that it h ant wanted to get it from the horse s own mouth as to whether the 1st defendant had received the money from the 4th defendant, which will go in some way to support the allegation of payment by the 3rd defendant to the 4th defendant. In Urban Transport Authority of New South Wales v Nweiser [1992] 28 NSWLR 471, Clark JA considered the following factors to be relevant in an application to re-open the evidence: (1) The question of whether to open the case will be considered in the interest of justice; (2) Tactical decision of not calling particular evidence is an important consideration but not decisive, and the application they more likely to be refused. (3) If the evidence were not called due to mistake or lack of foresight, the application should normally be granted. Mr Ng, SC for the plaintiffs, opposed the application and submitted that the 1st defendant s evidence is of marginal relevance: (1) The 3rd defendant has already put in the primary evidence of payment by itself for whatever it is worth; (2) The 3rd defendant has the receipt, and if the 1st defendant accepts that he has received the money, it is only of the same effect of the receipt; If the 1st defendant denies the receipt of the money and were accepted by the court, it would actually be against the 3rd defendant s cause; Alternatively, if the 1st defendant denies the receipt and were turned hostile, the evidence would be neutralized. Mr Ng also submitted that there would be prejudice in form of delay, and delay would aggravate the fact that the 1st defendant might not be good for the settlement. Mr Mak, for the 3rd defendant, admitted mistake on his part in not calling the 1st defendant when he left the case, which is about a month ago, and also delay in not calling him earlier than now. But he submitted that there is no serious prejudice to the plaintiffs by the added delay considering the high degree of relevance of the evidence. I note the irony that in the event the application were refused, the 3rd defendant would perhaps be making the submission of an attempt to suppress the truth on the part of the plaintiffs in addressing the court on the weight of the receipt. No doubt the 3rd defendant has got the evidence in the record of payment to 4th defendant, but that was not without criticism as to weight. The 3rd defendant also got the receipt in question, but the authenticity is challenged. I think it is in the interest of justice to find out the truth unless there is such serious irreparable prejudice countervailing. Mr Mak is not calling the 4th defendant who purportedly took the receipt. The 4th defendant is outside the jurisdiction, and in any case, it is the 1st defendant who purportedly signed the receipt. As to whether the 3rd defendant has been maneuvering under tactical considerations, I bear in mind that the settlement between the plaintiffs and the 1st defendant only came about at the beginning of the trial. Mr Mak must have been expecting to cross-examine the 1st defendant on the receipt. I do not consider that the failure to call the 1st defendant earlier was of tactical move, but perhaps unfortunately a lack of foresight. Whether the 1st defendant is good for settlement has to be seen, but that is a matter according to the schedule of payment in the settlement, and is subject to the usual vicissitudes of any promise to pay. There is bound to be further delay, but not such as to defeat any urgent exigency, nor will loom too large in the history of the prosecution of the case at the incidence of the plaintiffs. I note from the correspondence that the 1st defendant s solicitors are taking instructions on the point and wish to be heard on the matter. There is always the avenue to set aside the subpoena in the event of issue, and the considerations would be relevance of the evidence and oppression. On the former, I have ruled in favour of the 3rd defendant. In the premises, I shall allow the application and endorse the praecipe for the subpoena on the condition of immediate payment of the costs thrown away by the 3rd defendant. (Discussions on costs) 18. I make the gross sum assessment of the costs thrown away on the application this morning at HK$65,000. (B Fung) Judge of the Court of First Instance High Court Mr Peter K F Ng SC leading Mr Stewart Wong and Mr George Hui, instructed by Messrs Chan & Cheng, for the Plaintiffs Mr Andrew Mak and Mr Thomas Kwan, instructed by Messrs Rowland Chow, Chan & Co, for the 3rd Defendant PAGE PAGE - A B C D E F G H I J K L M N 1udk 1udk U V A B C D E F G H I J K L M N O P Q R S T U V &`#$ Dgy i$&l E!W8@r Dgy E!W8 hca.dot setup Microsoft Word 9.0 Title Microsoft Word Document MSWordDoc Word.Document.8