陳淦輝 v. 楊忠及另二人

HCA 1122/2019

[2023] HKCFI 3168

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1122 OF 2019

_________________

(By Original Action)

AND

(By Counterclaim)

_________________

_______________

DECISION

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1.I adjourn sine die the plaintiff’s summons dated 8 February 2021 seeking banker’s records from HSBC in respect of the 1^st defendant’s two bank accounts, pursuant to section 21 of the Evidence Ordinance, Cap 8.

2.I further direct that the plaintiff be debarred from restoring the summons, or fixing any fresh or other application concerning the same subject matter of the summons, to be heard on a date before the trial which is scheduled to commence on 18 December 2023.

3.There be no order as to costs of today’s hearing.

Reasons for adjournment

4.The summons was taken out on 9 February 2021. It was adjourned sine die on 25 February of the same year. On 10 May of the same year, I granted the plaintiff liberty to restore the summons upon 10 days’ notice being given. The plaintiff did not restore the summons until 31 October 2023, that is almost 2½ years later.

5.I refuse to hear the restored summons today because it was not served on the 2^nd defendant who should have been served. This restored application is the sixth attempt on the part of the plaintiff over the past four years to seek the 1^st defendant’s bank account information. So far, he has not had any success.

6.The previous five attempts are as follows:

(1)  On 3 October 2019, he took out his first summons for discovery. That summons was dismissed on 16 October 2019.

(2)  On 9 February 2021, he took out his second summons for discovery. That summons was adjourned sine die on 25 February 2021. That is the summons which is being restored in today’s hearing.

(3)  On 1 April 2021, he took out his third summons for discovery. It came before me on 10 May 2021. I dismissed that third summons but granted leave to the plaintiff to restore his second summons upon notice being given.

(4)  Then, on 27 January 2022, the plaintiff took out his fourth summons for discovery. On 10 February 2022, it was adjourned indefinitely.

(5)  After a long gap, on 18 October 2023, the plaintiff took out an ex parte application to seek discovery. The judge declined to entertain this application on 31 October 2023 for want of service. That is his fifth attempt to seek discovery under the Evidence Ordinance.

7.Most notably, in respect of the recent ex parte application, Deputy High Court Judge Simon Leung observed that by taking out this fresh application, the plaintiff was circumventing the order which I made on 10 May 2021. The judge also remarked that the application ought to have been served on the 1^st and 2^nd defendants. I share that view.

8.It is true that under section 21 of the Evidence Ordinance, the court has the power to hear an application even if the other party to the action is not being served with the application. That is expressly provided for in the statutory wording. But here, plainly, the 2^nd defendant should be served. And I say so for two reasons.

9.First, when the summons was originally taken out in February 2021, it was served on the 2^nd defendant. She was present at the hearing. There is no reason in my view why she should not be served with the restored application.

10.Secondly, more importantly, the documents which the plaintiff now seeks allegedly go to support his contention that he had made financial contributions to the purchase of the Ma On Shan property. And, on that basis, his case is that he was the beneficial owner of the property even though the legal title was vested in the 1^st defendant. These documents, if they do reflect what the plaintiff says they do, would be directly relevant to the defence of the 2^nd defendant.

11.The 2^nd defendant purchased the property from the 1^st defendant in 2018. In this action, she denies that the plaintiff was the beneficial owner of the property.

12.These documents are sought by the plaintiff so close to the trial. If I do grant the order today and the documents do reveal information in support of the plaintiff’s case, then he will no doubt use and rely on them at the trial next month. This will certainly have a direct impact on the 2^nd defendant and on how she would conduct the trial.

13.Hence, in the circumstances, the 2^nd defendant should be informed of today’s restored application and she should be heard as to whether the application should be granted. Given the lateness of the application, I would consider that the 2^nd defendant has every right to submit to the court that the application should not be allowed on that ground.

14.However, the plaintiff did not serve the restored application on the 2^nd defendant. The effect of that is to keep the 2^nd defendant in the dark until when the plaintiff obtains documents in his favour. If the court grants the order today, that would be procedurally unfair to the 2^nd defendant if that happens.

15.In the circumstances, I will not hear the restored application today because the 2^nd defendant has not been served.

Reasons for debarring any hearing for the same application before trial

16.In my view, the plaintiff should not be allowed to fix any hearing for the same or similar discovery application before the trial commences on 18 December this year.

17.Since 2019, the plaintiff has made six applications which have all in substance failed. Five judges and masters had been assigned to deal with them.

18.More recently, over the past three months, the plaintiff has made at least three applications. First, there is the application made on 11 September to amend the amended statement of claim. That was dismissed by Recorder William Wong, SC. Secondly, there is this ex parte application for discovery made on 18 October. That was not entertained by Deputy Judge Leung on 31 October. Thirdly, there is today’s restored application which I have already refused to hear.

19.All these applications recently taken out have failed in substance. For the ex parte application and today’s restored application, they have not been proceeded with properly procedurally. These are all very last-minute applications.

20.The justification for the plaintiff to take out these last-minute applications is that he only engaged the lawyers in August this year and he has been operating on a very limited legal budget.

21.Each time the plaintiff comes to the court, he asks for an immediate date to deal with his application because he says it is urgent in view of the upcoming trial. But all such urgency is self-induced. And even after the court has given him the opportunity for an immediate hearing or immediate disposal of the application, it would turn out that his applications taken out at the last minute were not well thought through or not properly served.

22.In my view, the court must express its disapproval on such litigation conduct. All these last-minute applications have resulted in wastage of the court’s resources. It had imposed on three judges over the past three months to specifically allocate time to deal with those applications. There is no duty on the part of the court or other parties to the action to bend over backwards to accommodate the plaintiff’s last-minute applications when the urgency has been self-induced. This pattern of taking out last-minute applications must be put to a stop.

23.In exercise of my case management power, I would disallow the plaintiff to fix any further hearing for the same subject matter to take place prior to the trial. If the plaintiff wishes to pursue further the discovery application, he should carefully consider what next step he should take from now on.

Mr Thomas Yeon, instructed by Tung, Ng, Tse & Lam, for the plaintiff (by original action) and the 2^nd defendant (by counterclaim)

The 1^st defendant (by original action) and the 3^rd defendant (by counterclaim) was not represented and did not appear