Dennis Kwok Hon Ming v. Poon Sui Cheong Albert and Others

HCMP 1526/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1526 OF 2013

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AND

HCMP 1527/2013

MISCELLANEOUS PROCEEDINGS NO 1527 OF 2013

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AND

HCMP 1528/2013

MISCELLANEOUS PROCEEDINGS NO 1528 OF 2013

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(Consolidated pursuant to the Order of
the Honourable Mr Justice Harris dated 27 January 2015)

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RULING

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1.Further to my Judgment of 7 July 2017 in respect of a half-hour directions hearing on 28 June 2017, the parties have been unable to agree directions and have referred the matter back to me for a ruling on the papers. The directions to be made pursuant to this ruling are “the Directions”.

2.Prior to the 28 June 2017 directions hearing, the parties submitted a draft directions document dated 23 June 2017 signed by both parties showing which directions were agreed and not agreed (“the 23 June 2017 Proposal”).  By my 7 July 2017 Judgment, I required various amendments to the directions.

3.The parties (having failed to agree such amendments) have by correspondence dated 20 July 2017 and 21 July 2017 submitted their own amended draft directions and requested that the court rule on paper on the future directions.

4.The irony is that the parties appear to have disagreed mainly over the timetable, but the failure to reach agreement on the directions and the referral of the matter back to the court means that the timetable must be prolonged.  The court clearly cannot grant directions for acts to be performed by dates which are already passed.

5.The Majority Shareholders’ proposed directions are dated 28 June 2017 and attached as Enclosure 2 to the Lo & Lo letter to the court dated 21 July 2017 (“the Majority Shareholders’ Proposal”); P’s proposed directions are undated and are attached as Enclosure 3 to the Lo & Lo letter to the court dated 21 July 2017 (“P’s Proposal”).

6.Where P has by solicitors’ letter dated 7 July 2017 confirmed that no application would be made by P for discovery, I understand that to mean that P was stating that he would not make the application considered at paragraphs 11 – 12 of my 7 July 2017 Judgment.  In such circumstances, no further directions in that respect are required.  The leave to P to make such application should be recorded in the 7 July 2017 order.

7.Paragraph 1 of the 23 June 2017 proposal was agreed and should be included as Paragraph 1 of the Directions.

8.Paragraph 2 of the 23 June 2017 Proposal was agreed and should be included as Paragraph 2 of the Directions, subject to a necessary amendment to the dates: questions to be put to the Independent Valuers within 7 days of this decision; the Independent Valuers have 14 days thereafter to respond.  (I envisage that the parties should have already considered the questions they wish to put, if they have not indeed already put them).  Once the Independent Valuers respond, that will be the end of what I termed the Q&A process in my 7 July 2017 Judgment.

9.In order to reflect paragraphs 5 and 6 of my judgment dated 7 July 2017, Paragraph 3 of the Directions should read: “Within 14 days thereafter, the parties do notify each other in writing whether they propose to adduce any further evidence; and if so, from whom, on what issues, and pursuant to what jurisdiction.  Insofar as it is proposed to adduce further evidence, the relevant party must seek the leave of the court, such application be made within the same period of 14 days.”  If the application is unopposed, then the court will take that into account.  However, jurisdiction to allow further evidence in the circumstances of this case has not yet been established.

10.Paragraph 3 of the 23 June 2017 Proposal was agreed and should be included as Paragraph 4 of the Directions, subject to a necessary amendment to the dates.  I note that there can be no realistic discussion of time estimates nor setting down of the substantive hearing until questions as to admissibility of evidence are resolved.  Accordingly:

(a)   The date by which agreement should be reached in sub-paragraph (a) be amended to 14 days after the date in Paragraph 3 for notification and applications in respect of further evidence, alternatively (if appropriate) 14 days after the court’s determination in respect of admissibility of further evidence, whichever is the later.

(b)   The date in sub-paragraph (b) be amended to 3 days after the date in sub-paragraph (a).

(c)   Sub-paragraph (e) be deleted.

11.In my view, issues as to cross-examination will arise under Paragraph 4(a) of the Directions, and there is no need for separate provision to be made under Paragraph 3.  I understood it to be common ground at the 28 June 2017 hearing that the parties would be entitled to cross-examine the Independent Valuers.

12.The costs order nisi made on 7 July 2017 has become final.  In respect of the costs relating to the Directions thereafter, consistently with the previous costs order, costs be in the cause. The Directions are required as part of the proceedings, as a prelude to the valuation determination, which follows from the liability determination. 

13.The Majority Shareholders are directed to lodge the Directions for approval within 3 days, along with a soft copy in Word format.

The petitioner appeared in person (in all cases)

Mr Victor Joffe, Mr Justin Ho and Mr Tom Ng, instructed by Lo & Lo, for the 1^st – 4^th and 6^th – 8^th respondents (in all cases)

The 5^th respondent appeared in person (in all cases)

The 9^th respondent was not represented and did not appear (in all cases)