IN THE SUPREME COURT OF HONG KONG
AND 1991, No.A477 ———————–
AND 1991, No.A477
AND 1991, No.A320
Coram : the Hon. Mr Justice Findlay, in Court
Date of hearing : 17 May 1996
Date of handing down of judgment : 20 May 1996
J U D G M E N T
1. I have a summons before me issued by Galco dated 15 May 1996 in which it asks for an extension of time within which to file anotherhearsay notice relating to further evidence.
2. The additional evidence that Galco wishes to introduce by way of the hearsay notice is from two witnesses; Mr Aaron Locker and DrRichard Porschen. There is no opposition to the reception of the evidence from Dr Porschen.
3. Mr Locker, who is an expert on United States law, particularly that area of law relating to consumer protection, has already givenevidence to the court in person. He has been examined, cross-examined and re-examined. The solicitor for Galco, Mr Britton, saysthat during the cross-examination of another witness, Dr Richard Schlesinger, Mr Barlow, counsel for Kader, put to him an interpretationof the meaning of a supplemental definition of ‘toxicity’ found in a provision of United States legislation known as 16 CFR – 1500.3(c). Mr Britton says that, so far as he is aware, this was not put to Mr Locker. Mr Barlow does not accept this. It was also putto Dr Schlesinger that it would have been possible to obtain an advisory opinion from the United States Consumer Products SafetyCommission (CPSC). Mr Barlow concedes that this was not put to Mr Locker.
4. It seems to me that the point about obtaining an advisory opinion from the CPSC, if this is of some relevance, should have been putto Mr Locker, who is Galco’s witness on United States law and the witness who would have been expected to deal with this matter.I do not know what value this evidence has; little, it seems to me at this stage, but Kader introduced the point, and I think itis right that Galco’s legal expert should be entitled to comment upon it.
5. As to CFR – 1500.3(c), I have read through the transcript of the cross-examination of Mr Locker in this area, and I cannot find thereany specific question put to him in which he is asked to deal with this provision and its effect. It may be argued, as I understandMr Barlow to do, that Mr Locker deals with the point obliquely in answer to other questions, and, indeed, what he wishes to say inaddition under the hearsay notice seems to add very little of relevance to what he already said to me in evidence in Hong Kong. Itis also possible to say that Mr Locker had plenty of opportunity to draw attention to CFR – 1500.3(c) if he thought it relevant,and, therefore, one may draw the inference that he did not consider it relevant.. Nevertheless, it seems to me unsatisfactory thata point that, apparently, Kader considers to have some importance should be dealt with indirectly in this way. I believe that Galco’switness on United States law should have the opportunity to comment specifically on CFR – 1500.3(c) in relation to the definitionof ‘toxic’ so that what he says is before the court and its relevance or otherwise can be determined. In my view, it is not satisfactorythat the point should be put to a non-legal witness, and that I should not have before me the view of Galco’s only expert on UnitedStates law.
6. For these reasons, I allow the application and I make an order in terms of the summons of 15 May 1996.
Judge of the High Court
Mr Richard Mills-Owen QC and Mr John Bleach QC, instructed by Messrs Denton Hall, for Galco
Mr John Griffiths QC, Mr Barrie Barlow and Mr Pat Chan, instructed by Messrs PC Woo & Co, for Kader.