Long Hai Hong v. Chan Yu, Lydia and Others
Read the full judgment text of HCMP 3179/2013 on BabelCite. This High Court CFI judgment was delivered on 7 August 2024.
1. These 4 sets of proceedings (“ the 4 Actions ”) were ordered to be tried together before one judge [1] .
Cited by 11 cases · Cites 1 case
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HCMP 3179/2013 [2024] HKCFI 2116 HCMP 3179/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS NO 3179 OF 2013 _______________________
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______________________ HCA 175/2018 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 175 OF 2018 _______________________
______________________ HCA 721/2019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 721 OF 2019 _______________________
______________________ HCA 1537/2019 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 1537 OF 2019 _______________________
_______________________ (Heard together)
_______________________ REASONS FOR DECISION _______________________ 1.These 4 sets of proceedings (“the 4 Actions”) were ordered to be tried together before one judge[1]. 2.The 4 Actions share common parties and certain issues. The commonality of parties relevant to this decision is: Madam Long Hai Hong (“Madam Long”) is the Applicant/Plaintiff in all of the 4 Actions, Madam Liu Dan (“Madam Liu”) is one of the Respondents/Defendants in all of the 4 Actions, Mr Xing Zhirong (“Mr Xing”) is the 2nd Defendant in HCA 175/ 2018 and the 2nd Defendant in HCA 1537/2019. 3.By a summons issued in each of the 4 Actions all dated 23 June 2023, Madam Liu, Mr Xing and China Terry Limited, the 4th Defendant in HCA 175/2018, (together “the Applying Parties”) applied in each of the 4 Actions, for an order for specific discovery by Madam Long of the same categories of documents. With the discovery of the other documents having been sought out, remain in dispute between the parties was the application for the discovery of “Category 2” documents (“the Discovery Applications”). 4.On 29 September 2023, Master Grace Chow heard the Discovery Applications substantively, and by a decision given ex tempore, she dismissed them. 5.By 4 Notices of Appeal all dated 13 October 2023, one in each of the 4 Actions, the Applying Parties appeal against the dismissal. 6.At the conclusion of the hearing of the appeals, which were conducted by way of a hearing de novo, I dismissed the appeals, and having heard submissions on costs, awarded costs to Madam Long to be paid by the Applying Parties then summarily assessed at HK$140,000. 7.These are my reasons. HCMP 3179/2013 and the disputes therein 8.Though the Discovery Applications were made in the 4 Actions, the documents sought relate only to the subject matter and disputes in HCMP 3179/2013. I would therefore only introduce background matters as relating to HCMP 3179/2013 sufficient for understanding this decision, as follows. I would not introduce those relating to the other 3 actions. 9.Lee So Winston (“Winston”) was an American Chinese living in Beijing since at least 1992. Madam Long was his wife and now the Adminstratrix of his estate; and according to her, she had all along been a house wife. According to Madam Liu, she and Winston were business partners from 1993 onwards and in about 1998 they developed a romantic relationship and had been co-habiting together. Winston died unexpectedly on 18 September 2013. 10.HCMP 3179/2013 was commenced by Madam Long in her personal capacity to seek to rectify the Register of Members of AJK Company Limited (“AJK Ltd”) by striking out the name of Madam Liu and entering the name of Madam Long as the registered shareholder of 940,000 shares (“the Disputed Shares”) representing 94% of the share capital of AJK Ltd. AJK Ltd may be owning a controlling interest in 北京漢成大廈物業有限公司 (“Beijing Hanwei”) which owns Hanwei Plaza, an office building in the Chaoyang District in Beijing. Presently, there is a dispute between the relevant parties as to whether the said controlling interest in Beijing Hanwei is owned by AJK Ltd or by another partnership called A.J.K. Company. 11.Broadly summarized, Madam Long’s case in HCMP 3179/2013 is that AJK Ltd was incorporated in 1992 by Winston acting through nominee subscribers, that Winston provided the share capital and the capital to acquire Beijing Hanwei, that the registered shareholders were Winston’s nominees, that in November 2011 the Disputed Shares were registered in the name of Madam Long by Winston as a gift to her, but that without Madam Long’s authority, knowledge or consent, the Dispute Shares were wrongfully caused to be registered in the name of Madam Liu in June 2013. 12.Madam Liu’s case, again summarized broadly, is that pursuant to a business arrangement between her and Mr Xing who was the original beneficial owner of the Dispute Shares, the Disputed Shares were transferred to her beneficially in January 2005. Due to the need of her business operations in 2011, Madam Liu sought a nominee to hold the Disputed Shares on her behalf. At the recommendation of Winston and in 2011, the Disputed Shares were registered in the name of Madam Long as Madam Liu’s nominee. Subsequently, at the end of 2012, the nominee arrangement was no longer necessary and in January 2013, the Disputed Shares were transferred back to Madam Liu. Her name was then registered in the Register of Members in June 2013. 13.The Originating Summons (“the OS”) was issued on 25 November 2013, which is now proceeding as a writ action. Matters leading to seeking the discovery of Category 2 documents 14.The Applying Parties seek the discovery of Category 2 documents because Madam Long in her consolidated witness statement filed for the 4 Actions dated 28 December 2022 (“ Long WS”) expressly stated that certain statements of facts she affirmed to earlier were incorrect and she then gave the correct version there, as follows: 15.In §5 and §8 of Madam Long’s 1st affirmation filed herein on 20 December 2013 in support of the OS (“Long 1st”), she respectively affirmed:
16.However, in §2 to §5 of Long WS, Madam Long said:
17.It is common ground that the exact statement of fact so admitted to be incorrect was “我在收到有關股份證書後，即交給我的丈夫李甦 (Lee So, Winston) 並應存放在A JK的註冊地址保管至今” (§5 of Long 1st) and now the correct fact, according to and as admitted by Madam Long in Long WS, is “我從未持有任何由AJK Company Limited發給我的股票”. The Category 2 documents 18.In the respective schedules attached to the 4 summons, the contents of which are identical, the Applying Parties applied for the same Category 2 of documents:
19.Though the following did not form part of my reasoning for dismissing the appeals, I must observe at this juncture that these requests of documents under Category 2 (a) are really wide in scope in that they seek all such communications not just between Madam Long and each of the 5 named lawyers but also all communications among and between any combination of these 6 persons, and (b) they contain a clear inconsistency in that the body of paragraph 2 requests for “All communication(s) … in relation to and resulting in all those purported misstatements” while sub-paragraph (1) requests for “All communication(s) … in relation to the instructions given by Madam Long (or 王家路律師 and/or 張有鳳律師on her behalf) for commencing litigation in Hong Kong”. A preliminary point : the scope of Category 2 20.Before the Master, the Applying Parties argued that Category 2 documents also included such requested documents in relation to and resulting in “the mis-statements” contained in §§5 to 10 of the 2nd Affirmation of Madam Long (“Long 2nd) filed on 13 January 2014. That was ruled against by the Master. 21.It is not disputed that in §8 to §10 of Long WS:
22.The same argument was pursued by Mr Lee at the hearing contending that Category 2 covers this larger scope of documents to include documents in relation to and resulting in the “mis-statements” contained in §5 to §10 of Long 2nd. 23.It is trite and only fair that the discovery application must identify with precision the category of documents the specific discovery of which is sought (Hong Kong Civil Procedure 2024§24/7/2). 24.Here, though the body of paragraph 2 of Category 2 makes mention of “misstatements in her Affirmations”, which is in plural, the body of paragraph 2 itself, sub-paragraphs (1), (2) and (3) thereof only specifically refer to and identify the corrections contain in §2 to §5 of Long’s WS and there was no reference to or mention at all about the corrections made in §8 to §10 of Long WS. 25.In my view, the requests by Category 2 clearly did not specify and did not cover the “mis-statements” contained in Long 2nd as mentioned in §8 to §10 of Long WS. I so ruled at the hearing for the above reasons. Category 2 documents do not relate to a matter in issue 26.It is trite and not disputed that (a) there is no jurisdiction to make an order for specific discovery under O.24 r.7 unless, among others, there is a prima facie case that the documents relate to a matter in issue, and (b) specific discovery would not be ordered on documents relating solely to credit (Hong Kong Civil Procedure 2024§24/7/2). 27.The factual statement that she have received the share certificates was merely a piece of evidence Madam Long proffered in Long 1st, which she now retracted as incorrect in Long WS. 28.Mr Chan, counsel for Madam Long, rightly pointed out, and not disputed by Mr Lee, that the factual issue about whether there were actually share certificates of AJK Ltd having been issued and the same having been in Madam Long’s possession at some point did not even feature in the pleadings. 29.Mr Lee, counsel for the Applying Parties, submitted that the Category 2 documents relate to the issue as to whether at the time of the 2011 share transfer, Madam Long knew that the Disputed Shares were transferred into her name. 30.I do not accept that submission. That specific knowledge is not in issue at all. 31.As I mentioned in paragraph 21 above, in §8 to §10 of Long WS, Madam Long expressly stated that prior to Winston’s passing (a) she did not even know about the existence of AJK Ltd, and (b) she did not know which company it was that Winston said its shares would be gifted to her (among the other matters relating to AJK Ltd she expressly stated there that she did not know at the time). 32.Moreover, the same lack of knowledge was pleaded by Madam Long in §4.13 of her Reply in HCMP 3179/2013 by her amendment made on 5 July 2023, thus :
33.Thus, (a) it has now been unequivocally admitted by Long in Long WS that did not at any time possessed the share certificates, and (b) Madam Long pleaded and admitted her such lack of knowledge as aforesaid. 34.In my view, it is abundantly clear that the Category 2 documents do not relate to any issue in question and that they relate solely to credit. 35.At the hearing and after hearing submissions on this point, I announced my decision that the documents sought did not relate to any matter in issue, which was sufficient to dismiss the appeals. I therefore did not call upon the parties to address the Court regarding the issue of legal professional privilege. 36.For the above reasons, I dismissed the appeals with costs.
Mr Jun Lee, instructed by Kobre & Kim, for: Mr Derek Chan, instructed by Minterellison LLP, for: | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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