Miss Leung So Hung Siem V.Mr Carson Wen and Others

HCA 121/2017

[2018] HKCFI 685

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 121 OF 2017

____________

____________

________________

D E C I S I O N

________________

The appeal

1.This is the appeal by the plaintiff against the Order of Master K H Hui made on 17 November 2017 (“Master Hui’s Order”): (1) allowing the summons dated 29 June 2017 taken out by the 1^st, 2^nd, 4^th, 5^th and 6^th defendants (“the 5 defendants”, “Ds’ 2^nd F&B Summons”) for Further and Better Particulars of the Further and Better Particulars previously given by the plaintiff on 5 June 2017; (2) extending the time for those defendants to file and serve their Defence and Counterclaim to 28 days from the date the plaintiff filed the Further and Better Particulars ordered; and (3) costs of the application including the hearing summarily assessed at HK$37,000 be payable by the plaintiff within 28 days from the date of the decision.

2.The relevant Notice of Appeal was filed by the plaintiff on 27 November 2017 (“the Notice of Appeal”).  By that notice, the plaintiff also seeks to appeal against a separate and earlier decision of Master J Wong ordering, amongst other things, that the plaintiff’s claim against the 3^rd defendant be struck out.  Having invited parties’ written submissions and having considered them, I have directed that that part of the Notice of Appeal be heard separately.

Legal representation

3.The plaintiff appeared in person.

4.I have directed that the attendance of the 3^rd defendant be excused.  This part of the appeal does not concern them.

5.Mr Chan appeared for the 1^st, 4^th and 5^th defendants, upon the instruction of Messrs Leung & Associates.   

6.Both the 2^nd and 6^th defendants are named on the Writ and Statement of Claim (drafted by the plaintiff in person) as “Sancus Group”.  They were not represented before me.  Nor did any of their representatives attend. 

7.During the hearing of Ds’ 2^nd F&B Summons before Master K H Hui, Mr Chan was instructed by the same firm of solicitors to appear for all of the 5 defendants.  The change, as confirmed to me by Mr Chan, was due to the recent realization that “Sancus Group” was not a separate legalentity that could sue or be sued.  That term loosely refers to a large group ofcompanies which bear “Sancus” in their names (and other companies whichare held by or associated with them).  Amongst the court file is a summons taken out recently by Sancus Investment Limited for an order, amongst other things, that (1) it be granted leave to be joined as an intervener to this action; (2) the writ and the statement of claim herein against the 2^nd and 6^th defendants be struck out.

8.Given the background set out above, and in particular the fact that “Sancus Group” was not a separate legal entity, I deemed it futile to adjourn the hearing for their attendance.  In any event, Leung & Associates,who have been seeing to the interest of those two “defendants”, had notice ofthis hearing.  In the circumstances, and having considered Order 32, rule 5, I decided that it was expedient to proceed with the hearing of the appeal.

9.One further consequence flows from the matters set out above, which is this.  As the 2^nd and 6^th defendants were not legal entities, they had no capacity to join in Ds’ 2^nd F&B Summons.  On this basis, and upon my rehearing of Ds’ 2^nd F&B Summons, I dismiss the part of the application by the 2^nd and 6^th defendants.

10.I proceed to consider the application by the 1^st, 4^th and 5^th defendants under Ds’ 2^nd F&B Summons.

The plaintiff’s claim

11.The writ was issued on 16 January 2017.  The statement of claim was prepared by the plaintiff in person.  Their contents are not easy to comprehend.  In broad terms, it is a claim by the plaintiff for outstanding introduction fee in the sum of HK$2,500,000,000.00 (HK$2.5 billion) which she said she was entitled to receive for having introduced certain investors to Mr Wen.

12.On 27 February 2017, the 1^st and 5^th defendants took out a summons for (1) discovery of certain documents, and (2) Further and Better Particulars of the Statement of Claim (“the 1^st F&B and Discovery Summons”).  That summons was heard by Master K H Hui on 8 May 2017, who granted the Order sought (“the 1^st F&B and Discovery Order”).

13.On 7 June 2017, in purported compliance of the 1^st F&B and Discovery Order, the plaintiff served her first set of Further and Better Particulars (“1^st F&B”) and certain documents.

14.Despite steps having been taken by her to comply with the 1^st F&B and Discovery Order, the plaintiff by a Notice of Appeal dated 17 July 2017 sought to appeal against the same.  The appeal was heard before Deputy Judge Yee on 22 November 2017, who by his Decision dated 21 December 2017 dismissed the same.

15.In the meantime, despite the provision by the plaintiff of the 1^st F&B and certain documents in purported compliance of the 1^st F&B and Discovery Order, the 5 defendants were of the view that the plaintiff’s claimremained materially confusing and lacked material particulars.  On 29 June 2017, they took out Ds’ 2^nd F&B Summons.

16.Ds’ 2^nd F&B Summons was heard by Master K H Hui on 17 November 2018.  At the end of the hearing, Master K H Hui allowed the application and made Master Hui’s Order.  That Order is the subject matter of this appeal.

17.One matter about that hearing should be noted.  The plaintiff originally contested the application.  The transcript of that hearing shows however that after some explanations from Master K H Hui, the plaintiff consented to the application.  As recorded at page 12, lines K – L of the transcript, Master K H Hui said:

「係。好喇，咁由於係梁女士係同意有關申請，咁法庭亦都頒令係梁女士需要提供有關嘅進一，再進一步嘅資料嘅，咁即係有關申請嘅係第1段、第2段都係批准。」

18.As it turned out, the plaintiff did provide a second set of Further and Better Particulars (“the 2^nd F&B”) on 1 December 2017 as ordered.  But in the meantime, on 27 November 2017, she filed the Notice of Appeal.

Appeal by way of rehearing

19.I remind myself of the following principles, which are trite andnot disputed by the parties.  An appeal from a master to a judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the Master, but he is in no way bound by it.  The judge in chambers is in no way fettered by the previous exercise of the Master’s decision, and on appeal from the judge in chambers, the Court of Appeal will treat the substantial discretion as that of the judge, and not of the Master — Hong Kong Civil Procedure 2018, paragraph 58/1/2.

Consideration of the appeal

20.I have considered the grounds of appeals set out by the plaintiff in the Notice of Appeal.  They are difficult to comprehend.  Read in conjunction with the plaintiff’s oral submissions made before me, her grounds may be grouped into the following points:

(a)  the agreement she was suing on or the information relating to the investors she introduced to the defendant(s) were confidential, and she could not “leak” them without court order;

(b)  the Further and Better Particulars that the defendants were seeking were contained in the documents she provided to the defendants;

(c)  the defendants knew the answers to the requests for the Further and Better Particulars which they were seeking, so that there was no need for them to ask; and

(d)  a lawyer who acted for the 5 defendants had lied in an affirmation filed in support of the 1^st F&B and Discovery Summons (as to whether the defendants had certain documents). 

21.None of those points assists the plaintiff’s appeal in any way.  Even taking (without finding) her four points at their highest (and considering them in the same order):

(a)  The plaintiff is now ordered by Master Hui’s Order to provide the 2^nd F&B;

(b)  The fact that the particulars which a litigant is otherwise obliged to plead and provide are contained in some documents which the litigant has disclosed to the other party does not excuse the litigant from pleading and providing those particulars.  The other party is entitled to know from the pleadings what case it has to meet;

(c)  For the same reason, the fact that the other party may know theanswers to its requests for further and better particulars does notexcuse the litigant from pleading and providing those particulars; 

(d)  the affirmation which the plaintiff complained about has no relevance to resolution of Ds’ 2^nd F&B Summons and the present appeal.  If at all, that might have been relevant to the 1^st F&B and Discovery Summons.  But the 1^st F&B and Discovery Order have been appealed against, and the appeal dismissed by Deputy Judge Yee.

22.I have otherwise considered D’s Summons afresh.  I agree with Mr Chan’s submissions that despite the 1^st F&B, the plaintiff’s claim remained unclear as to (1) the number of contracts being alleged; (2) the identities of the parties to those contracts; (3) how those contracts were alleged to have been reached; (4) the relevant terms of the agreements; (5) particulars of the breaches; and (6) how the alleged loss and damage of HK$2.5 billion was calculated.

23.Having considered the matter afresh, I agree that D’s Summons, in so far as it concerned the 1^st, 4^th and 5^th defendants was concerned, was correctly allowed.  I do the same.

24.I note further, as I have explained above, that the plaintiff had before Master K H Hui agreed to the provision of the 2^nd F&B.  She did in fact do so.  This appeal, apart from being unmeritorious, also has no real purpose to serve.

Conclusion

25.For the above reasons, I dismiss the appeal in so far as it relates to the 1^st, 4^th and 5^th defendants.

Costs

26.In respect of the costs of the hearing before Master K H Hui, as I have allowed the part of the appeal in respect of the 2^nd and 6^th defendants,I reduce the costs which the plaintiff was ordered by Master Hui’s Order to paid by two-fifths, so that it becomes HK$22,200.

27.In respect of the costs of the present appeal, Mr Chan sought summary assessment.  I have considered the Statement of Costs submitted to me.  The sum of HK$71,853 is claimed.  I have considered the nature of the appeal, which is not complex.  I note also that some works were done by Principal, Assistant Solicitors and Clerk, which necessarily involved some duplication.  I rule that an appropriate amount would be HK$45,000.  I so order.

28.I order further that the total costs of $67,200 should be paid within 28 days from the day hereof.

The plaintiff appeared in person

Mr Jonathan Chan, instructed by Leung & Associates, for the 1^st, 4^th and 5^th defendants

Attendance of the 3^rd defendant was excused

The 2^nd and 6^th defendants were not represented and did not appear