K & L Gates v. Navin Kumar Aggarwal and Others

HCA 1061/2011 &
HCA 349/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1061 OF 2011

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 349 OF 2012

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(Consolidated by the Order of Deputy High Court
Judge B Chu dated the 10^th day of July 2013)

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D E C I S I O N

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INTRODUCTION

1.There are 2 applications before the court:

(1)   An application by D2 to strike-out the claim;

(2)   An application by the plaintiff for discovery against D2.

BACKGROUND

2.D1 (“Aggarwal”), was a former partner of the plaintiff (“KLG”). He committed fraudulent breach of trust against KLG by, amongst others, misappropriating monies from KLG’s client accounts.  He confessed transferring those monies to casinos and junket operators in Macau and Australia and their related entities to pay his gambling losses.  KLG has obtained judgment in default against D1 who is now serving his sentence.

3.The Defendants are casinos, junket operators in Macau (D2 being one of them) and Australia and/or their agents who have allegedly received the misappropriated monies. 

4.KLG sues D2 for, amongst others, knowing receipt as constructive trustees and breach of statutory duties.  In respect of the latter, KLG says that D2 has failed to make enquires as an honest recipient would make or to report suspicious transactions and receipt of monies in circumstances that might indicate fraud or criminal conduct to the Macau authorities and Hong Kong police, thereby causing loss to KLG.

5.Specifically against D2, KLG claims HK$128,429,426.99, under 28 transactions from 13 August 2007 to 6 October 2010 (“the 28 Payments”).

6.It is not disputed that the 28 Payments were all made to SAT IENG CO and/or SAT IENG COMPANY (either or both of which shall be referred to as “SIC” below.)  It is also not disputed that there is no evidence of payment by SIC to D2. 

KLG’s case

7.KLG says that SIC was an agent with actual or ostensible authority who received the 28 Payments on D2’s behalf.

8.The business registration records of SIC show that it was an unincorporated business formed in Hong Kong on 1 March 2005.  Man Wai Chiu (“Man”) has been the sole proprietor since then until 2 January 2009, when Ng Kim Ming (“Ng”) joined and a partnership was formed.  Man left on 31 August 2009 and Ng became the sole proprietor.  The business ceased on 30 November 2010.

9.D2 was incorporated in Macau on 14 December 2004.  It had a different place of business from that of SIC.  The initial sole shareholder and director (administrator) was Phua Wei Seng (“Phua”).  Phua transferred his shares to Tang Chien Chang (“Tang”) on 4 January 2007 and ceased to be a director on the same date.  Tang has since been the sole shareholder and director of D2.  He is also deponent for D2.

10.On the face of public documents, there was no connection between SIC and D2.  However, it is KLG’s case that Phua, Man, D2 and SIC were interconnected, that SIC and D2 were closely connected, and/or were the same entity, and/or controlled by the same entities.

D2’s defence

11.D2 accepts that it is regulated by Macau laws.  It denies receipt of the 28 Payments and the alleged agency with SIC.  It denies maintaining the Hang Seng Bank Account (into which the 28 Payments were deposited) or any bank account in Hong Kong. It denies having any business or connection with SIC, or knowledge of or any relationship or connection with Man or Ng.  It alleges that KLG sued the wrong entity. 

LEGAL PRINCIPLES ON AGENCY

12.An agent is a person authorized to act on behalf of a principal so as to affect the principal’s relations with third parties: HKSAR v Cheng Chee-Tock Theodore, FACC7/2014, 21 March 2016, at §51.

13.A principal may confer actual authority, apparent authority, or both on its agent: Bowstead & Reynolds on Agency (12^th ed, 2014), at §3‑001.

14.Actual authority results from a manifestation of assent that the agent should represent or act for the principal expressly or impliedly made by the principal to the agent himself.  It is a legal relationship between principal and agent created by a consensual agreement. It is an authority which the principal has given the agent wholly or in part by means of words or writing, or is regarded by the law as having given him because of the interpretation put by the law on the relationship and dealings of the two parties: Bowstead & Reynolds on Agency (12^th ed, 2014), §§3-001&3-003.

15.The court does not look favourably at arguments that a subsidiary company is agent for the principal company, or that companies or their directors are agents for their human shareholders.  Whether there is such agency would be required to be proved by normal criteria on the facts of each case: Bowstead & Reynolds on Agency (12^th ed, 2014), pp 19-20.

16.Apparent authority results from a manifestation of assent that the agent should represent or act for the principal expressly or impliedly made by the principal to third parties: Bowstead & Reynolds on Agency (12^th ed, 2014), §3-001.

17.The key element to apparent authority is a “holding out” or representation made by the principal to the third parties that the agent has the authority to act on its behalf.  In Yip Lai Fong & anor v Sin Tung Hng & ors [2004] 3 HKC 153 at 159, §17, Lam J (as he then was).

18.The plaintiff has to make it clear whether it is pleading a case of actual, ostensible or apparent authority, and if apparent authority is relied on, it is essential to plead facts which show a “holding out” by the principal that the agent has the authority to enter into the agreement on its behalf: Polima Toys Manufacturing Co Ltd v Super Art Toys Co Ltd, HCA 948/2012, 6 February 2014, DHCJ B Chu (as she then was), §54; Yip Lai Fong,at §17.

LEGAL PRINCIPLES ON STRIKING OUT

19.D2 seeks to strike-out the claim on the ground that it is frivolous or vexatious or is otherwise an abuse of process of the court.  It elects not to rely on the ground of no reasonable cause of action disclosed.

20.The principles have been set out in Hong Kong Civil Procedure 2016, Vol.1,at §§18/19/3, 18/19/4, 18/19/6:

(a)   The Court will strike out a pleading when the applicant has shown that it is plain and obvious that the other party’s claim is bound to fail.

(b)   There should be no trial upon affidavit.  Disputed facts are to be taken in favour of the party sought to be struck out.

(c)   Nor should the court decide difficult points of law in striking out proceedings. The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.

(d)   If the court does not think the matter to be clear beyond doubt or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, there should be no striking out.

(e)   Where the legal viability of a cause of action is sensitive to the facts, an order to strike out should not be made.

(f)  Although a strike out application can be made any stage in the proceedings, it ought to be made promptly and as a rule before the pleadings are closed.

(g)   The mere fact that the case is weak, and not likely to succeed, is no ground for striking it out.

21.In exercising the discretion to strike out, the court will apply commercial and common sense. It is not sufficient just to look at each factual issue one by one and to consider whether it is possible that a party’s story in relation to that issue is credible.  The court must look at the complete account of events put forward by the plaintiff and the defendant and to look at the whole situation.  Courts have becoming increasingly vigilant to ensure wastage of costs, court time and resources does not occur and that an action is kept “on track” for resolution of the real dispute.  This is in line with the spirit of the Civil Justice Reform. The court now has wide-ranging case management powers under Order 1B including the power to exclude an issue from consideration and take any other step or make any other order for the purpose of managing the case and furthering the underlying objectives set out in Order 1A.  See Simply Power Ltd v Billy Chua & ors, HCA 2452/2013, 22 January 2015, Recorder Pow SC, §§29-33.

22.As to delay in taking out a strike-out application, Recorder Kwok SC held in Tang Woung Shiu v Tang Kun Yeung & anor [2002] 3 HKLRD 627 at 635G-639D, §§29-35 that:

(a)   O18, r19(1) provides that the Court may strike out a claim “at any stage of the proceedings”.

(b)   The duty lies fairly and squarely on a party not to put in, and persist on the basis of, a pleading (and a claim) which offends against O18, r19.

(c)   It lacks reason as well as common sense to compel a defendant to incur substantially greater costs for a trial on the ground that the application should have been made sooner.

(d)   The fact that costs may have been wasted through not taking the point earlier is a matter which the court can address when deciding on costs for the late application to strike-out.

DELAY OF D2 IN TAKING OUT THE STRIKE-OUT APPLICATION

23.The action proceeded slowly because of the number of defendants, various interlocutory applications and the plaintiff’s amendment to its pleadings.

24.D2 took out this strike out application only after discovery, as Tang wanted to see whether KLG was relying on any evidence which predated his acquisition of D2 and which might have an effect on D2’s liability.  Master M Wong, rightly, described this as a “wait and see” approach.  He declined to defer the exchange of witness statements pending resolution of the strike out application. 

25.However, delay has also to be viewed in the light of the bigger picture.  D2 has twice (on 8 December 2011 and 10 March 2015) persuaded KLG to drop its case for suing the wrong entity.  It has given opportunities to KLG to clarify its case through amendment of pleadings and the giving of further and better particulars.  The latest Supplemental List of Documents and further documents were provided in August 2015.  D2 took out the strike out application a month later.

26.Looking at matters in the round, D2 cannot be said to be too late in taking out this application.  Four years from commencement of this action, the case has not yet been set down for trial.  In any event, the real question is whether there are grounds for striking out.  I will not dismiss this application solely on the ground of delay.

THE BURDEN OF PROOF

27.Central to the claim is for KLG to establish D2’s receipt of the 28 Payments and the agency relationship between SIC and D2.  It is not for D2 to disprove the agency or alleged close connection as asserted by KLG in the letter of its solicitors dated 13 December 2011.

28.The court may rely on direct evidence or draw inference.  A distinction must be drawn between inference and suspicion.  Inference must be properly grounded in the primary facts found.  The court guards against indulging in conjecture under the guise of drawing an inference where the primary evidence does not logically and reasonably justify the particular inference in question.  Nina Kung v Wang Din Shin (2005) 8 HKCFAR 387, Ribeiro PJ, at §185.  The learned Permanent Judge went on to quote the High Court of Australia in Luxton v Vines (1952) 85 CLR 352, at 358,

“… if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise.”

29.Ribeiro PJ further held that it is not permissible merely to choose what may be considered to be the more likely of two guesses if neither is properly justified by the primary facts found: Nina Kung at §186.

30.In this strike out application, however, it is for D2 to show that the claim is so unarguably bad and impossible for it to succeed.  Mr Lam SC, counsel for D2, disclaims any attempt to ask the court to conduct a mini-trial on affidavits.  Instead, he invites the court to hold that, even assuming that the Court were to disbelieve or ignore entirely D2’s evidence , the rejection of D2’s evidence will not turn into positive evidence to prove KLG’s case that D2 had received the 28 Payments.

31.In Chan Ka Lim v Chow Wai Kin [2008] 5 HKLRD 881 at 891, §26, Le Pichon JA held that:

“... As Scrutton LJ succinctly observed in Hobbs v Tinling (CT) & Co Ltd [1929] 2 KB 1 at p. 21:

“... If by cross-examination to credit you prove that a man’s oath cannot be relied on, and he has sworn he did not go to Rome on May 1, you do not, therefore, prove that he did go to Rome on May 1; there is simply no evidence on the subject.” ”

MERITS OF THE STRIKE OUT APPLICATION

32.KLG has not pleaded anything to show the conferment of actual authority on SIC, whether the authority was given orally or in writing, what the representation was and what facts constituted the “holding out”, hence falling short of the requirement in Polima Toys v Super Art Toys.

33.As pointed out by Mr Lam SC,  KLG purports to rely on the following matters to establish its case (“the 5 Matters”) against D2:

(1)   Substantial payments from SIC to Phua;

(2)   Appointment of Man, one of the owners of SIC by D2 and Phua as their process agent and sharing of the same address;

(3)   Conducting the same business in the same jurisdiction, ie as a junket operator in Macau;

(4)   Same name (ie “SAT IENG” as well as its Chinese name 實盈);

(5)   An announcement of a company called “Teem Foundation”.

1^st Matter – Substantial payments from SIC to Phua

34.The essential feature of a claim in knowing receipt is that the recipient must have received the property for his own use and benefit: Agip (Africa) Ltd v Jackson & ors [1990] 1 Ch 265 at 292A, Millet J (as he then was).

35.Similarly, on KLG’s pleaded case, the duties which D2 allegedly breached arose upon receiving the 28 Payments (§§35 & 37 of the re-re-amended statement of claim).

36.It was no coincidence that from the complete set of bank records that KLG obtained from Hang Seng Bank concerning all accounts held by SIC covering the period of the 28 Payments, KLG could not find a single payment from SIC to D2.  The 28 Payments were made to other junket operators (like Dore, Wynn Resort, Melco) but never to D2.  There was no evidence of receipt by D2.

37.On each of 24 June 2008 and 31 July 2008, HK$10 million was transferred from another account of SIC in Hang Seng Bank to Phua’s account in ING Asia Private Bank Ltd.  However, Phua had ceased to be shareholder or director of D2 by then.  There was nothing to show that Phua had received the 2 Payments on behalf of D2 so as to affect D2’s relations with third parties: HKSAR v Cheng Chee-Tock Theodore.

38.The 1^st Matter does not assist KLG.

2^nd Matter – Appointment of Man by D2 and Phua as their process agent and sharing of the same address

39.KLG relies on a draft agreement dated 10 March 2006 showing that D2 was to sell certain interest in its profit generated at Sands Casino to Worth Perfect.  Under Clause 15(A):

“[D2 as Vendor] and [Phua as Guarantor] jointly hereby appoint [Man] of Avendia Praia Grande, No. 409, China Law Building 6 andar, Macau as their agent to receive and acknowledge on their behalf service of any writ, summons, order, judgment or other notice of legal process in Hong Kong … [D2 and/or Phua] agree that any such legal process shall be sufficiently served on it if delivered to such agent for service at its address for the time being in Hong Kong whether or not such agent gives notice thereof to them.”

40.The Macau address of Man (then owner of SIC) in Clause 15(A) and that of D2 and Phua in the preamble were the same.  It was also the registered address of D2 from 14 December 2004 to 23 August 2005.

41.In another draft SPA dated 10 March 2006, Rich Game (the subsidiary of D2) as vendor was to sell 100% of the shareholding in a company called Youngrich Limited to Smart Town Holdings Limited (as purchaser)[1]. Both D2 and Rich Game were “warrantors” as defined in Clause 1.1.  Under Clause 12.2, both D2 and Rich Game gave the name, fax number and address of Man (being the same address mentioned in the preceding paragraph) as their own.

42.In the light of the 2 agreements, D2’s pleaded denial of having any relationship or connection with Man might not be entirely true. 

43.Further, D2 has appointed agents and subagents, and there were apparently previous attempts by D2 and Phua to appoint Man as their agent.  D2, Phua and Man were so close that they shared the same address and contact in Macau.

44.Mr Lam SC disagrees.  He submits that the draft agreement was a draft, not purportedly signed by anyone.  It was purportedly dated before Tang acquired D2 and before the 28 Payments.  At most, it showed that in 2006, there was intended appointment of Man for a limited purpose of accepting service of legal process and nothing else.  Compare this to Clause 15B where Robertsons (current solicitors for KLG) was similarly appointed as agent of the purchaser, Worth Perfect.  It could not be said that Robertsons was an agent for the purpose of receiving monies on the purchaser’s behalf.

45.The “agency relationship” disclosed on the draft agreements may not directly establish the agency relevant to this case.  However, the common address and the common figures (Phua and Man) may have some bearing in showing connection between D2, Phua and Man and the credibility of Tang’s denial of connection.

3^rd Matter – Conducting the same business in the same jurisdiction (ie as a junket operator in Macau)

4^th Matter – Same English and Chinese names

46.KLG claims that SIC and D2 were conducting the same business in the same jurisdiction ie as a junket operator in Macau.

47.D2 has always admitted that it was and is a junket operator in Macau. However, Mr Lam SC points out that SIC had, according to the BR Records, carried on the business of “investment, trading”.  There is no evidence that it ran any business outside Hong Kong, still less as a junket operator.

48.According to KLG, a junket operator in Macau must be licensed by the Macau authority, and its name will be published. However, the names of SIC, Man or Ng, did not appear in the list of junket operators published by the Macau authorities.

49.Information available from the website of the Macau authority (DICJ) shows that from 2007 to 2011, the only junket operator with the name “Sat Ieng” and “實盈”was D2.  There was no discernable reason why SIC (formed after incorporation of D2) should adopt both the same Chinese and English names as D2 (save for the word “Ltd”).

50.Despite the description of its business as investment/trading, SIC had indisputably received the 28 Payments from Aggarwal “for his gambling debts” and made substantial and frequent payments from August 2007 to November 2010 to various casinos, junket operators and/or their agents in Macau and elsewhere.

51.Considering the matters in paragraphs 47-50, it is not impossible for the trial judge to draw an inference that SIC and D2 were related or that SIC acted as or was held out as agent for D2.

5^th Matter – An announcement of a company called “Teem Foundation”

52.An announcement made by a publicly listed company, Teem Foundation Group Ltd. (“Teem Foundation”) on 18 September 2006 showed that D2 had a wholly owned subsidiary, Rich Game Capital Inc (“Rich Game”), which in turn had a sub-subsidiary, Worth Perfect International Limited (“Worth Perfect”).  The announcement concerned the acquisition of a subsidiary of Rich Game by a subsidiary of Teem Foundation.  According to KLG, the announcement made various open representations relevant to this action:

(a)   Mr Tang’s relationship with D2 started much earlier than he admitted, as could been seen from p.11 of the announcement:

“Mr Tang has over 15 years of experience in Asian gaming, including working as an oversea promoter for various casinos’ VIP lounges in Macau and a casino on cruise liner. He has been one of the major oversea promoters of Sat Ieng since February 2005.”

(b)   D2 has agents and sub-agents who source players from all parts of the world (that might include Hong Kong) as could be seen from p 8 of the announcement:

“the junket business is not a one person show but involves promoters and agents/sub-agents. The person licensed to operate as a junket in Macau is licensed as a gaming promoter… However, in order to go and bring players to the actual casinos, the gaming promoter will have individuals, including the agents, sub-agents and overseas promoters, who source players from all parts of the World. Mr Tang has been and is still the overseas promoter of Sat Ieng and he has obtained the support from other agents and sub-agents of Sat Ieng”.

(c)   There was a reference to “Dore” as a junket licence holder in the announcement.

(d)   The practice of appointing such agents has been averred by various other defendants.

53.With regard to item (a), this may contradict Tang’s denial of connection with D2.

54.With regard to item (b), they may give rise to an inference that D2 did use agents (who received commission) at the material time. However, the fact that an agent had been given authority to do X (to bring in customers) did not mean he had authority to do Y (to receive money on behalf of D2).  Still less did the announcement show that SIC must have been D2’s agent.  The announcement was of course not conclusive of who the agents were and what their authority was, but KLG has nothing positive in proof otherwise.

55.With regard to item (c), SIC not only paid out some of the 28 Payments to Dore but also received money from Dore.

56.With regard to item (d), KLG refers to the admissions by D3, D8 and D10 that they each have appointed a company with accounts in Hong Kong to receive payment from customers as their agents or on their behalf.  In contrast, KLG says that D2 has not pleaded anything about this “common practice” in the gaming industry, nor anything about any of its agents to receive payments. 

57.I agree with Mr Lam SC that KLG must not reverse the burden of proof. It is impossible for D2 to prove the negative of its blank denial.

58.Further, in my view, it is for KLG to plead “common practice”, if that be its case.  Whilst D2, D5 and D12 are also licensed junket operators in Macau, it is not KLG’s case that they have admitted that they had appointed companies with bank accounts in Hong Kong as agents to receive payments from clients on their behalf. Further, the defendants involved in this litigation are only a small number out of the total number of junket operators in Macau.  Even so, only some of the defendants admitted using companies with bank accounts in Hong Kong as agents to receive payments.  It is misleading to describe there to be a “common practice in the gaming industry”.

59.Further, KLG claims that D2 has failed to disclose any documents in relation to bank accounts held in its own name or in the name of its agents (This forms one of the subjects of the discovery summons.)  It avers that such lack of particulars or discovery in this respect spoke against the genuineness of its defence.

60.With respect, the court determines the strike out application on the materials before it now.  It is an abuse of the court’s process to start a case without a solid foundation hoping that something will turn up in the course of the proceedings, for example at the stage of discovery or cross-examination: The New China Hong Kong Group Limited (in Creditors’ Voluntary Liquidation) & anor v Ng Kwai Kai, Kenneth & ors, HCA519/2010, unreported, 11 February 2011, Fok JA (as he then was, sitting as additional judge of CFI) at §70; followed in Simply Power Ltd at §47. 

SUMMARY ON THE STRIKING OUT APPLICATION

61.The evidence shows that Aggarwal had admitted paying $128m to SIC to settle his gambling debt. Applying Simply Power Ltd, the complete account of KLG and the 2^nd to 5^th Matters have to be considered together. With proper cross-examination and drawing of inference, it is impossible to say now that the trial judge will definitely reject KLG’s case.  Though KLG’s case appears to be weak, this is not a case that the court is invited to act on suspicions.  I dismiss the application.

THE DISCOVERY APPLICATION

Legal principles on discovery

62.To found jurisdiction for discovery, KLG has to show that the documents existed, are relevant to the issues and are in the possession of D2. 

63.It is not the purpose of discovery to give the parties an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the opposite party’s part or will provide information for them to pursue more inquires: Re Estate of Ng Chan Wah, HCAP 5/2003, 5 March 2003, Chu J (as she then was) §16.

64.“Fishing expeditions” arise where what is sought is not evidence but information which may lead to a line of inquiry which would disclose evidence. It is the search for material in the hope of being able to raise allegations of fact, as opposed to the solicitation of evidence to support allegations of fact, which have been raised bona fide with adequate particularization: C v C, CACV 410/2005, 28 July 2006, §8.

Application of the legal principles

65.KLG seeks 3 classes of documents.  They are opposed on the ground, amongst others, of their width.

66.I agree.  A formula asking for “all documents relating to …” lacks precision.  A request for “all bank documents” in relation to D2’s bank accounts intrudes privacy without valid cause.  Issuing the discovery application after D2 has applied for striking out, and a year after D2 has filed its list of documents also points to a fishing expedition. 

67.In the course of the arguments, Ms Lok, counsel for the plaintiff, has reduced the scope of the discovery and revised the classes of documents as follows:

A.  Agreement(s), provisional or final, relating to the purported transfer of any interest in D2 from Phua to Tang, including a conditional agreement of sale and purchase of D2 dated 28 August 2006;

B.  Submissions, applications and/or filings by D2 to the Macau authorities, in particular to the Gaming Inspection and Coordination Bureau (ie Direcção de Inspecção e Coordenação de Jogos, or “DICJ”) from 1 March 2005 to 11 December 2010 (both dates inclusive); and

C.  Bank documents of D2 showing payments to or from Phua after his purported disposal of D2 to Tang on 28 August 2006 to 11 December 2010.

68.With regard to Class A, there cannot be any dispute that this Class existed.  As D2 is a licensed junket operator in Macau, this sale must be submitted to and approved by the relevant authorities.  Ms Lok submits that Class A is relevant to show D2’s relationship with Tang and Phua.

69.I am unable to see the relevance of Class A.  There was no suggestion as to what further relationship between Phua and Tang, apart from the vendor and purchaser already known, might be disclosed from this Class of documents and what train of enquiry under the Peruvian Guano test the discovery can trigger.

70.With regard to Class B, “the Macau authorities” is too vague a term.  It should be removed.  That aside, documents under this class are clearly relevant because in the applications to DICJ, D2 had to disclose who its associated and/or connected entities were.  This may help towards showing whether any of SIC, Man, Ng or Phua was D2’s agent or connected to D2.  The documents do exist and are in D2’s possession because of the need for D2 to seek approval by DICJ.  This Class is not defined too widely.  It is necessary for fair disposal of the issue of agency and will save costs. I order discovery of Class B subject to removal of the words “the Macau authorities, in particular to” from the description.

71.With regard to Class C, for 4 years since this action has commenced, KLG has been unable to produce documents to show that Phua had made payments to D2.  Nor has KLG pleaded that D2 has paid Phua at any time.  Seeking Class C is a typical fishing exercise for documents, which should not be allowed.

72.In summary, I order disclosure of the revised Class B documents only.

CONCLUSION

73.I dismiss D2’s application for striking out.  On a nisi basis, costs should follow the event and be to KLG. 

74.I order discovery of the revised Class B only (subject to deletion of the words “the Macau authorities, in particular to”).

75.D2’s contest of the discovery summons was reasonable.  KLG has almost completely revised the classes of documents.  Taking a broad view of the matter, I order, nisi, that KLG to bear 80% of D2’s costs of this summons.

76.Hearing time shall be apportioned between the strike-out summons and discovery summons, nisi, in the ratio of 70:30.  Parties shall endeavour to agree on costs and set off one against the other.  Failing agreement, all costs shall be summarily assessed on 13 June 2016 on the papers without the need for attendance.

77.I thank counsel for their assistance.  Their thorough preparation and fair attitude are much appreciated.

Ms Frances Lok, instructed by Robertsons, for the plaintiff

Mr Paul Lam, SC, instructed by Michael Li & Co, for the 2^nd defendant