In Trustee of the SFC Litigation Trust,(1) the High Court considered a prospective witness's application to set aside a subpoena directed at him. The subpoena combined directions to the witness to give evidence at trial on behalf of the plaintiff and to produce the originals of certain transaction documents. The court set aside the part of the subpoena directed at giving evidence but not the part directed at producing documents. The court's decision provides useful guidance as to the general practice for issuing subpoenas and, in doing so, reviews some of the relevant legal principles. The case is a useful reminder that a party which wishes to subpoena a witness must consider the matter as part of its overall case management responsibilities and before the pre-trial review hearing.
In Trustee of the SFC Litigation Trust, the plaintiff trustee issued a subpoena directed at the applicant (the witness). The witness had previously made an affirmation (a sworn statement) in the underlying proceedings between the plaintiff and the defendants in which he had sought to explain his role in allegedly assisting the first defendant with some payment transactions to certain recipients in mainland China. There was no suggestion of wrongdoing on the part of the witness.
One part of the subpoena directed the witness to produce the originals of identified bank statements and remittance documents for a designated period with respect to certain transactions – the transactions were stated to relate to the first defendant's alleged breach, and the other defendants' alleged assistance in breaching, an order of the court restraining the first defendant from disposing of some of his assets. The documents sought by the plaintiff were described in detail in the body of the subpoena.
The other part of the subpoena directed the witness to attend court "to give evidence on behalf of the Plaintiff" at the trial of committal proceedings against the defendants with respect to their alleged contempt of court.
It appears that the plaintiff obtained the issue of the subpoena pursuant to their solicitors' letter addressed to the court registry, which was also copied to the defendants' solicitors. The subpoena was issued by the court on the basis of the letter. On being served with the subpoena, it does not appear that the witness was served with a copy of the plaintiff's solicitors' letter – neither did the subpoena appear to specify the substance of the evidence required of the witness beyond a standard direction to attend the trial to give evidence on behalf of the plaintiff.
The witness applied to set aside the subpoena on the basis that:
- no affidavit had been filed in support of the plaintiff's application to issue the subpoena;
- there had been an alleged material non-disclosure by the plaintiff in suggesting that the witness might be an associate of the first defendant;
- the production of the documents was unnecessary; and
- the witness's evidence at trial was unnecessary.
The court ordered that the part of the subpoena relating to the giving of evidence at trial be set aside.
Evidence in support of subpoena
The court acknowledged that it is good practice for an application for a subpoena to be supported by an affidavit and to serve such affidavit on the witness at the time of serving the subpoena. However, there is no requirement in the court rules for an affidavit in support and applications by letter (together with other supporting documents) are on occasion permitted. The court's decision refers to the courts' role in allowing the issue of a subpoena – namely, a preliminary filtering role to ensure that the application was not an abuse of process. Essentially, the threshold for the issue of a subpoena is not high and it is not the function of the court at this stage to determine the relevance of the evidence sought from the witness.(2) Once issued and served, it is open to the witness to challenge the subpoena by applying to set it aside.
Alleged non-disclosure
The court rejected the argument that there had been a material non-disclosure. The plaintiff's solicitors' letter had adequately dealt with the circumstances in which the witness's affirmation had been made and the manner in which that evidence was sought to be used. The reference to the witness being an associate of the first defendant was described as "innocuous" and did not suggest that the witness had been involved in any alleged wrongdoing.(3)
Production of documents necessary
The court noted that the original documents of which production was sought related to (among other things) bank statements and remittance documents for transactions which the witness conceded had been undertaken at the first defendant's request. The documents were relevant and the fact that the plaintiff may have been able to obtain some of the documents from the defendants did not prevent the plaintiff from using a subpoena to compel production from the witness. It is good practice for a party to obtain the originals of documents for use at trial and in good time and the witness in this case had not categorically confirmed that the relevant documents were not in his possession. Therefore, production of the original documents was justified.
Witness evidence
The court acknowledged that a party has a general right to call oral evidence to assist their case as they see fit. However, a witness served with a subpoena is entitled to know the nature and scope of the evidence that is sought. There was no suggestion that the plaintiff in the present case had approached the witness in order to obtain a witness statement. The witness had also not been served with a copy of the plaintiff's solicitors' letter in support of the subpoena. The subpoena stated only that the witness was directed to attend court "to give evidence on behalf of the Plaintiff" – it did not specify the substance of the evidence required of him, whereas it did describe in detail the documents sought. Therefore, the court allowed the witness's application to set aside the subpoena as regards the direction to give witness evidence.
The court's decision is a useful reminder of the general principles that govern the issue of subpoenas. The decision refers to and applies the leading case law.(4)
For legal practitioners, the contrast between the detailed description of the specific documents that are sought and the general nature of the witness evidence that is identified is something to keep in mind. On the face of it, it appears to be a fair assumption in this case that the witness could have inferred that the plaintiff wanted to question him about the documents which were described in detail in the subpoena. Indeed, the normal precedent for a subpoena provides for a description of "the documents or things to be produced", whereas as regards witness testimony, it simply states "to give evidence on behalf of the [plaintiff][defendant]".(5) While witnesses will usually have only a limited interest in opposing subpoenas, good practice suggests that they should be informed of the precise nature and scope of the evidence in respect of which their testimony is required. This is particularly so given the court's limited filtering role when approving the issue of a subpoena.
The case is also another recent example of the courts' increased case management role with respect to the preparatory steps leading up to trial.(6)
Endnotes
(2) Li Wai Tat v Li Man York [1998] 1 HKLRD 121.
(3) Supra note 1, at paragraph 13.
(4) For example, Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd [2010] 2 HKC 356; Chan Cheung Ming v Siu Sin Man [2014] 5 HKLRD 89.
(5) Hong Kong Civil Procedure 2019, "Court Forms", Appendix A (FM-A29).
(6) See, for example, "Court critical of late subpoenas".
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.
