tion by the defendants was bound to fail before the Master, and cannot succeed
before me. That appeal fails and is dismissed.
The Defendants’ Additional Evidence
That still leaves in the air the fate of the evidence contained in Mr
Clark’s second affidavit. If it had been so that the plaintiffs had not sought to
adduce new evidence in the appeal, it would not have been right to allow in the
evidence contained the Mr Clark’s first affidavit as regurgitated in his second
affidavit. But it cannot be just to allow the plaintiffs to adduce new evidence on
the appeal to establish the plaintiffs’ connection with Hong Kong and any damage suffered here, and say to the defendants that they may not adduce evidence
on these same points in reply, even although some of this evidence was contained in evidence filed outside the time allowed by the “unless” order.
By their actions, the plaintiffs have allowed this evidence in, and they
must live with that. Not that, in my view, allowing the evidence in makes much
difference to an overall view of the facts. The thrust of Mr Clark’s evidence is
that the plaintiffs have failed to adduce documentary evidence, such as an identity card or business registration, to help establish a substantial connection with
Hong Kong. These points were made in argument before the Master. Notwithstanding this, the plaintiffs have not produced such documentary evidence, and,
in the light of the fact that the plaintiffs have gone to the trouble of adducing
new evidence on the issues concerned and that, if the second plaintiff did hold
a Hong Kong identity card and the business of the plaintiffs was registered,
such evidence could easily have been adduced, the natural inference to draw is
that the plaintiffs are unable to produce a identity card or proof of business registration. So, whether one works on the evidence adduced in Mr Clark’s second
affidavit or by inference, the conclusion must be, as matter of probability, that
the second plaintiff does not hold a Hong Kong identity card and neither his
business or that of the first plaintiff is registered in Hong Kong.
I give leave to both parties to adduce the new evidence on appeal.
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