HCA2593/2017 LUEN MING SUPREME FABRICATOR CO LTD AND ANOTHER v. NG CHI WAH AND ANOTHER - LawHero
HCA2593/2017
高等法院（民事訴訟）K Yeung J8/4/2020[2020] HKCFI 624
HCA2593/2017
A A
HCA 2593/2017
B B
[2020] HKCFI 624
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E ACTION NO 2593 OF 2017 E
______________
F F
BETWEEN
G G
LUEN MING SUPREME FABRICATOR 1st Plaintiff
COMPANY LIMITED (聯明精裝有限公司)
H H
UY MARIA LUISA GALVEZ (韋樂怡) 2nd Plaintiff
I I
and
J J
st
NG CHI WAH (吳誌華) 1 Defendant
K K
SHUN SING HOLDINGS LIMITED 2nd Defendant
(信成控股有限公司)
L L
______________
M M
Before: Hon K Yeung J in Chambers
N N
Date of Hearing: 9 April 2020
O Date of Decision: 9 April 2020 O
P P
Q Q
DECISION
R R
S S
1. The is the 2nd PTR of the trial scheduled to commence on 5 May
T
2020. T
U U
V V
- 2 -
A A
B
2. The 1st PTR was scheduled to take place on 5 February 2020. It B
was adjourned because of the general adjournment of court proceedings
C C
(“GAP”) due to the outbreak of COVID-19. On 26 February 2020,
D
I directed on a nisi basis that the PTR be disposed of on paper. Having D
considered parties’ respective submissions subsequently made, I on 17 March
E E
2020 gave on paper a set of directions on the conduct of the trial. I also
F
directed that there be a 2nd PTR on 9 April 2020. I left outstanding one F
matter. That was the plaintiffs’ application by summons of 16 January 2020
G G
(the “Summons”) returnable on the date of the original PTR for retrospective
H
leave to file and serve their Supplemental List of Documents dated H
3 December 2019 (the “Supplemental List”). Also on 17 March 2020
I I
I gave directions on the filing of evidence in respect of the Summons. I also
J directed that that the Summons be adjourned and be dealt with during the J
2nd PTR.
K K
L
3. The Summons is now before me. L
M The plaintiffs’ claim M
N 4. The plaintiffs’ case may be summarized as follows. The parties N
were ex-business partners. They had a business plan (the “Investment
O O
Agreement”). As a result of the misrepresentations made to them by D1 on
P about 26 February 2015 to the effect that D2 (a HK company held by D1 and P
a Mr Tan) and a wholly owned subsidiary of D2 (“Shun Sing ZQ”) were
Q Q
dormant and had no asset or liability, the parties agreed to use D2 and Shun
R Sing ZQ as the business vehicles to further the Investment Agreement. R
Monies in the total sum of HK$6 million were paid by the plaintiffs into D2’s
S S
account. Shares of another company (“UCD HK”) acquired for the intended
T business were also allotted or transferred to inter alios D2. The shares in D2 T
U U
V V
- 3 -
A A
B
were in turn transferred to the plaintiffs. Subsequently, on about 4 March B
2016 , D1 told the plaintiffs and other business associates that D2 was in fact
1
C C
holding two mortgaged properties for him and Tan. D1 requested the
D
plaintiffs to transfer the shares in D2 back to them in return for D1’s D
undertaking that he would within 6 months caused D2 to transfer all shares in
E E
Shun Sing ZQ to UCD HK. The plaintiffs did as agreed. D1 did not.
F
Further, from around February 2017, D1 and D2 started to refuse to provide F
further information to the plaintiffs regarding the business. The plaintiffs
G G
say that the defendants have repudiated the Investment Agreement. They
H
also rely on the doctrine of fraudulent misrepresentation. They say there are H
entitled to have the HK$6 million back. Alternatively they claim damages.
I I
The Supplemental List
J J
5. The Supplemental List, when first prepared, contained certain
K K
typographical errors. They have been rectified. I mention them no more.
L L
6. The Supplemental List was first filed and served on 3 December
M M
2019. By then, the plaintiffs had already (1) on 21 June 2019 in their Listing
N Questionnaire confirmed that that discovery had been completed, and (2) on N
27 August 2019 confirmed that the case was ready for trial.
O O
P 7. When the plaintiffs filed the Supplemental List, no leave had P
been obtained. Subsequently, on 16 January 2020, the Summons was filed
Q Q
seeking an Order that they “do have retrospective leave to” do so.
R R
8. The Supplemental List discloses 29 items. As it turns out,
S S
4 (#68, #82, #89 and #90) of them have previously been fully or partially
T T
1
amended to February or March in the Amended Statement of Claim
U U
V V
- 4 -
A A
B
disclosed. Application for their disclosure has either been withdrawn or not B
objected to. No further issue arises from those items.
C C
9. What remain are 25 items.
D D
E 10. The defendants object to the Summons on the lateness of the E
application and the alleged irrelevance of those 25 items.
F F
G The authorities G
H 11. I have been referred to Hong Lok School Ltd & Others v Chow H
Sai Yiu & Others [2003] 2 HKLRD 782 and Liu Chen v Chan Poon Wing and
I I
Keung Wai Ming (unrep, HCPI 779/2006, 7 October 2009). The applicable
J principles are not in dispute. I will apply them. J
K K
Consideration of the submissions
L L
12. Mr Lai, counsel for the defendants, submit that the application is
M “inexcusably late” and that the plaintiffs only made an affidavit on 23 March M
2020 (of Mr Stephen Kam (“SK#1”), a legal executive of Messrs Bryan Chan
N N
& Co (“BC & Co”, the plaintiff’s solicitors) supporting the Summons and
O explaining the delay. O
P P
13. That objection has to be considered in context.
Q Q
14. BC & Co only came on record as the plaintiffs’ solicitors on
R 27 August 2019. R
S S
15. According to SK#1, the reasons for the delay in effecting the
T disclosure are (1) the change of the plaintiffs’ legal advisers, (2) the fact that T
U U
V V
- 5 -
A A
B
the only director of P1 being usually in the Mainland, and (3) the end of the B
employment of the employee of P1 responsible for handling the action.
C C
16. While those reasons do not necessarily excuse the delay, at least
D D
they explain it.
E E
17. Importantly in my view, the Supplement List was first filed and
F F
served, albeit without leave, on 3 December 2019. That was some 5 months
G before the scheduled commencement of the trial. G
H H
18. I am not encouraging late discovery. Late discovery affects
I expeditious resolution of disputes. Serious prejudice can be caused. Late I
discovery should always be discouraged and frowned upon. But in this case,
J J
at least it is not one of those last minute disclosures effected outside the court
K room or in the course of the trial (compared with Hong Lok School). K
L L
19. I note further that after the service of the Supplemental List, the
M defendants did not immediately object. I am not imposing any duty on them M
to object. But the way they approached the matter explains (at least partially)
N N
why the Summons and the affirmation in support was filed late.
O O
20. Having been served the Supplemental List, Messrs Kevin LH
P P
Kwong & Co (“KK & Co”, solicitors for the defendants) on 23 December
Q 2019 wrote to BC & Co. Clarification was sought as to “whether you will Q
seek retrospective leave for filing of the said Supplemental List ”. They
R R
asked for copies of the documents, and said that they “also reserve the right
S to make appropriate interlocutory application(s) after reviewing the fresh S
documents … if so doing is just and required ”.
T T
U U
V V
- 6 -
A A
B
21. On 27 December 2019, BC & Co replied. They said that B
retrospective leave would be sought. They also, save #95, served copies of
C C
all the newly disclosed documents upon KK & Co.
D D
22. The Summons was filed on 16 January 2020.
E E
23. After being served the Summons, KK & Co only on 27 February
F F
2020 indicated that they would object to the same.
G G
24. On 17 March 2020, I gave directions on the filing and serving of
H H
evidence in support and opposition of the Summons.
I I
25. On 23 March 2020, SK#1 was served.
J J
K 26. Given the chronology outlined above, I am not satisfied that the K
lateness of the Summons is such that this Court should dismiss the same.
L L
M
27. The provenances of the newly disclosed documents are such that M
their disclosure should not have taken the defendants by surprise. They are
N N
public records or official documents (#69, #80, #84 and #91), text messages,
O documents or otherwise correspondence between the parties (#70 to #74, #76 O
to #78, #83, #85 to #88 and #94). Some were actually from the defendants
P P
(eg #81 and #95).
Q Q
28. The disclosure or reliance of the newly disclosed items does not
R R
require the amendment of any pleadings or the filing of any further witness
S
statements. S
T T
U U
V V
- 7 -
A A
B
29. I refer to Attachment 1 (“Attachment 1”) appended to the B
written submissions of Ms Cyndi Ho, counsel for the plaintiffs. The
C C
majority of the items have in fact been referred to on the face of pleadings or
D
witness statements already filed. D
E 30. The newly disclosed items have been sorted into 3 groups: E
(A) relevant to dispute facts, (B) relevant to credibility; and (C) other
F F
supporting documents.
G G
31. Mr Lai objects to all of them. He submits (save a couple) that
H H
they are irrelevant. Regarding Group A, some are objected to on the basis of
I alleged lack of contemporaneity, and others of their alleged serve-serving I
nature. Category B are said to relate to un-pleaded facts.
J J
K 32. I have considered the relevance of all the items. I also refer to K
Attachment 1. As said, a lot of the items are text-messages between the
L L
parties. They are sufficiently contemporaneous and proximate to the
M transactions in issue. Credibility is also engaged. Background matter like M
the employment relationship between Leung & D1 is also obviously relevant.
N N
In my view, they all assist in securing the just resolution of the disputes
O between the parties in accordance with the substantive rights of the parties. O
P P
33. I have considered the issue of prejudice. Despite some general
Q complaints that the admission of those items would “certainly cause prejudice Q
to Ds’ preparation of the case”2, the defendants are not able to point to any
R R
specifics. Further, I do not see how the two lines of objections taken on
S S
T T
2
§12 of Mr Lai’s written submissions.
U U
V V
- 8 -
A A
B
behalf of the defendants (namely irrelevance on the one hand and prejudice to B
the defendants’ preparation of the case on the other) can be consistently made.
C C
Disposition
D D
34. Having considered all the relevant circumstances, and for
E E
reasons set out above, I grant the plaintiffs retrospective leave to file the
F Supplemental List. F
G G
Costs
H H
35. I order that the plaintiffs should pay Ds costs of and occasioned
I by the Summons. Costs of the hearing this morning be in the cause. I
J J
K K
(Keith Yeung)
L Judge of the Court of First Instance L
High Court
M M
Ms Cyndi Ho, instructed by Bryan Chan & Co,
N N
for the 1st and 2nd Plaintiffs
O O
Mr Adrian Lai and Mr Raymond Tsang,
P instructed by Kevin LH Kwong & Co, P
for the 1st and 2nd Defendants
Q Q
R R
S S
T T
U U
V V
LUEN MING SUPREME FABRICATOR CO LTD AND ANOTHER v. NG CHI WAH AND ANOTHER
A A
HCA 2593/2017
B B
[2020] HKCFI 624
C C
IN THE HIGH COURT OF THE
D
HONG KONG SPECIAL ADMINISTRATIVE REGION D
COURT OF FIRST INSTANCE
E ACTION NO 2593 OF 2017 E
______________
F F
BETWEEN
G G
LUEN MING SUPREME FABRICATOR 1st Plaintiff
COMPANY LIMITED (聯明精裝有限公司)
H H
UY MARIA LUISA GALVEZ (韋樂怡) 2nd Plaintiff
I I
and
J J
st
NG CHI WAH (吳誌華) 1 Defendant
K K
SHUN SING HOLDINGS LIMITED 2nd Defendant
(信成控股有限公司)
L L
______________
M M
Before: Hon K Yeung J in Chambers
N N
Date of Hearing: 9 April 2020
O Date of Decision: 9 April 2020 O
P P
Q Q
DECISION
R R
S S
1. The is the 2nd PTR of the trial scheduled to commence on 5 May
T
2020. T
U U
V V
- 2 -
A A
B
2. The 1st PTR was scheduled to take place on 5 February 2020. It B
was adjourned because of the general adjournment of court proceedings
C C
(“GAP”) due to the outbreak of COVID-19. On 26 February 2020,
D
I directed on a nisi basis that the PTR be disposed of on paper. Having D
considered parties’ respective submissions subsequently made, I on 17 March
E E
2020 gave on paper a set of directions on the conduct of the trial. I also
F
directed that there be a 2nd PTR on 9 April 2020. I left outstanding one F
matter. That was the plaintiffs’ application by summons of 16 January 2020
G G
(the “Summons”) returnable on the date of the original PTR for retrospective
H
leave to file and serve their Supplemental List of Documents dated H
3 December 2019 (the “Supplemental List”). Also on 17 March 2020
I I
I gave directions on the filing of evidence in respect of the Summons. I also
J directed that that the Summons be adjourned and be dealt with during the J
2nd PTR.
K K
L
3. The Summons is now before me. L
M The plaintiffs’ claim M
N 4. The plaintiffs’ case may be summarized as follows. The parties N
were ex-business partners. They had a business plan (the “Investment
O O
Agreement”). As a result of the misrepresentations made to them by D1 on
P about 26 February 2015 to the effect that D2 (a HK company held by D1 and P
a Mr Tan) and a wholly owned subsidiary of D2 (“Shun Sing ZQ”) were
Q Q
dormant and had no asset or liability, the parties agreed to use D2 and Shun
R Sing ZQ as the business vehicles to further the Investment Agreement. R
Monies in the total sum of HK$6 million were paid by the plaintiffs into D2’s
S S
account. Shares of another company (“UCD HK”) acquired for the intended
T business were also allotted or transferred to inter alios D2. The shares in D2 T
U U
V V
- 3 -
A A
B
were in turn transferred to the plaintiffs. Subsequently, on about 4 March B
2016 , D1 told the plaintiffs and other business associates that D2 was in fact
1
C C
holding two mortgaged properties for him and Tan. D1 requested the
D
plaintiffs to transfer the shares in D2 back to them in return for D1’s D
undertaking that he would within 6 months caused D2 to transfer all shares in
E E
Shun Sing ZQ to UCD HK. The plaintiffs did as agreed. D1 did not.
F
Further, from around February 2017, D1 and D2 started to refuse to provide F
further information to the plaintiffs regarding the business. The plaintiffs
G G
say that the defendants have repudiated the Investment Agreement. They
H
also rely on the doctrine of fraudulent misrepresentation. They say there are H
entitled to have the HK$6 million back. Alternatively they claim damages.
I I
The Supplemental List
J J
5. The Supplemental List, when first prepared, contained certain
K K
typographical errors. They have been rectified. I mention them no more.
L L
6. The Supplemental List was first filed and served on 3 December
M M
2019. By then, the plaintiffs had already (1) on 21 June 2019 in their Listing
N Questionnaire confirmed that that discovery had been completed, and (2) on N
27 August 2019 confirmed that the case was ready for trial.
O O
P 7. When the plaintiffs filed the Supplemental List, no leave had P
been obtained. Subsequently, on 16 January 2020, the Summons was filed
Q Q
seeking an Order that they “do have retrospective leave to” do so.
R R
8. The Supplemental List discloses 29 items. As it turns out,
S S
4 (#68, #82, #89 and #90) of them have previously been fully or partially
T T
1
amended to February or March in the Amended Statement of Claim
U U
V V
- 4 -
A A
B
disclosed. Application for their disclosure has either been withdrawn or not B
objected to. No further issue arises from those items.
C C
9. What remain are 25 items.
D D
E 10. The defendants object to the Summons on the lateness of the E
application and the alleged irrelevance of those 25 items.
F F
G The authorities G
H 11. I have been referred to Hong Lok School Ltd & Others v Chow H
Sai Yiu & Others [2003] 2 HKLRD 782 and Liu Chen v Chan Poon Wing and
I I
Keung Wai Ming (unrep, HCPI 779/2006, 7 October 2009). The applicable
J principles are not in dispute. I will apply them. J
K K
Consideration of the submissions
L L
12. Mr Lai, counsel for the defendants, submit that the application is
M “inexcusably late” and that the plaintiffs only made an affidavit on 23 March M
2020 (of Mr Stephen Kam (“SK#1”), a legal executive of Messrs Bryan Chan
N N
& Co (“BC & Co”, the plaintiff’s solicitors) supporting the Summons and
O explaining the delay. O
P P
13. That objection has to be considered in context.
Q Q
14. BC & Co only came on record as the plaintiffs’ solicitors on
R 27 August 2019. R
S S
15. According to SK#1, the reasons for the delay in effecting the
T disclosure are (1) the change of the plaintiffs’ legal advisers, (2) the fact that T
U U
V V
- 5 -
A A
B
the only director of P1 being usually in the Mainland, and (3) the end of the B
employment of the employee of P1 responsible for handling the action.
C C
16. While those reasons do not necessarily excuse the delay, at least
D D
they explain it.
E E
17. Importantly in my view, the Supplement List was first filed and
F F
served, albeit without leave, on 3 December 2019. That was some 5 months
G before the scheduled commencement of the trial. G
H H
18. I am not encouraging late discovery. Late discovery affects
I expeditious resolution of disputes. Serious prejudice can be caused. Late I
discovery should always be discouraged and frowned upon. But in this case,
J J
at least it is not one of those last minute disclosures effected outside the court
K room or in the course of the trial (compared with Hong Lok School). K
L L
19. I note further that after the service of the Supplemental List, the
M defendants did not immediately object. I am not imposing any duty on them M
to object. But the way they approached the matter explains (at least partially)
N N
why the Summons and the affirmation in support was filed late.
O O
20. Having been served the Supplemental List, Messrs Kevin LH
P P
Kwong & Co (“KK & Co”, solicitors for the defendants) on 23 December
Q 2019 wrote to BC & Co. Clarification was sought as to “whether you will Q
seek retrospective leave for filing of the said Supplemental List ”. They
R R
asked for copies of the documents, and said that they “also reserve the right
S to make appropriate interlocutory application(s) after reviewing the fresh S
documents … if so doing is just and required ”.
T T
U U
V V
- 6 -
A A
B
21. On 27 December 2019, BC & Co replied. They said that B
retrospective leave would be sought. They also, save #95, served copies of
C C
all the newly disclosed documents upon KK & Co.
D D
22. The Summons was filed on 16 January 2020.
E E
23. After being served the Summons, KK & Co only on 27 February
F F
2020 indicated that they would object to the same.
G G
24. On 17 March 2020, I gave directions on the filing and serving of
H H
evidence in support and opposition of the Summons.
I I
25. On 23 March 2020, SK#1 was served.
J J
K 26. Given the chronology outlined above, I am not satisfied that the K
lateness of the Summons is such that this Court should dismiss the same.
L L
M
27. The provenances of the newly disclosed documents are such that M
their disclosure should not have taken the defendants by surprise. They are
N N
public records or official documents (#69, #80, #84 and #91), text messages,
O documents or otherwise correspondence between the parties (#70 to #74, #76 O
to #78, #83, #85 to #88 and #94). Some were actually from the defendants
P P
(eg #81 and #95).
Q Q
28. The disclosure or reliance of the newly disclosed items does not
R R
require the amendment of any pleadings or the filing of any further witness
S
statements. S
T T
U U
V V
- 7 -
A A
B
29. I refer to Attachment 1 (“Attachment 1”) appended to the B
written submissions of Ms Cyndi Ho, counsel for the plaintiffs. The
C C
majority of the items have in fact been referred to on the face of pleadings or
D
witness statements already filed. D
E 30. The newly disclosed items have been sorted into 3 groups: E
(A) relevant to dispute facts, (B) relevant to credibility; and (C) other
F F
supporting documents.
G G
31. Mr Lai objects to all of them. He submits (save a couple) that
H H
they are irrelevant. Regarding Group A, some are objected to on the basis of
I alleged lack of contemporaneity, and others of their alleged serve-serving I
nature. Category B are said to relate to un-pleaded facts.
J J
K 32. I have considered the relevance of all the items. I also refer to K
Attachment 1. As said, a lot of the items are text-messages between the
L L
parties. They are sufficiently contemporaneous and proximate to the
M transactions in issue. Credibility is also engaged. Background matter like M
the employment relationship between Leung & D1 is also obviously relevant.
N N
In my view, they all assist in securing the just resolution of the disputes
O between the parties in accordance with the substantive rights of the parties. O
P P
33. I have considered the issue of prejudice. Despite some general
Q complaints that the admission of those items would “certainly cause prejudice Q
to Ds’ preparation of the case”2, the defendants are not able to point to any
R R
specifics. Further, I do not see how the two lines of objections taken on
S S
T T
2
§12 of Mr Lai’s written submissions.
U U
V V
- 8 -
A A
B
behalf of the defendants (namely irrelevance on the one hand and prejudice to B
the defendants’ preparation of the case on the other) can be consistently made.
C C
Disposition
D D
34. Having considered all the relevant circumstances, and for
E E
reasons set out above, I grant the plaintiffs retrospective leave to file the
F Supplemental List. F
G G
Costs
H H
35. I order that the plaintiffs should pay Ds costs of and occasioned
I by the Summons. Costs of the hearing this morning be in the cause. I
J J
K K
(Keith Yeung)
L Judge of the Court of First Instance L
High Court
M M
Ms Cyndi Ho, instructed by Bryan Chan & Co,
N N
for the 1st and 2nd Plaintiffs
O O
Mr Adrian Lai and Mr Raymond Tsang,
P instructed by Kevin LH Kwong & Co, P
for the 1st and 2nd Defendants
Q Q
R R
S S
T T
U U
V V