Kan Sau Lan, The Administratrix of the Estate of Tsang Ma Ming, Deceased v. Xu Hong

HCA 1958/2021

[2025] HKCFI 1161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1958 OF 2021

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D E C I S I O N

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A. Introduction

1.This is the Plaintiff’s application by summons dated 14 August 2024 seeking:-

(1)  a preservation order and/or proprietary injunction requiring the Defendant to pay the income arising from the following lands into an escrow account:-

(a)  Lo Wai Lot No. 148 in Demarcation District No. 116, Yuen Long, the New Territories;

(b)  Lo Wai Lot No. 154 in Demarcation District No. 116, Yuen Long, the New Territories;

(c)  The Remaining Portion of Sub-section 3 of Section A of Lot No. 1942 in Demarcation District No. 118, Yuen Long, the New Territories;

(d)  The Remaining Portion of Sub-section 3 of Section B of Lot No. 1942 in Demarcation District No. 118, Yuen Long, the New Territories;

(e)  The Remaining Portion of Lot No. 4000 in Demarcation District No. 116, Yuen Long, the New Territories; and

(f)  Lot No. 4694 in Demarcation District No. 116, Yuen Long, the New Territories.

(hereinafter collectively the “Disputed Lands”)

(2)  specific discovery in respect of the following documents:

(a)  all payment records made by the tenants and/or licensees to the Defendant and/or her authorized representative(s) if any in respect of the Disputed Lands since the death of Mr. Tsang Ma Ming (the “Deceased”);

(b)  all supporting and underlying documents of income received, expended and acquired directly and indirectly from the tenants and/or licensees in respect of the Disputed Lands since the death of the Deceased;

(c)  an account for all profits (including expenses, tax payments and tax returns in relation to the Disputed Lands, breakdown, etc.) acquired by the Defendant directly or indirectly from the tenants and/or licensees in respect of the Disputed Lands since the death of the Deceased; and

(d)  all correspondence, memoranda and other documents between the above tenants and/or licensees and the Defendant personally and/or through her authorized representative(s) (if any) in relation to the Disputed Lands.

B.  Material Background

2.For the purposes of disposing of the present applications, it suffices to set out the following facts succinctly.

3.The Deceased was the registered owner of the Disputed Lands.

4.He tragically died in a fatal traffic accident on 13 September 2004.

5.The Plaintiff was the wife of the Deceased.  They had two children.

6.The Defendant was the Deceased’s mistress.  They had two children.

7.In January 2007, the Defendant’s children, through the Defendant acting as a next friend, commenced HCAP 1/2007 against the Plaintiff.  The proceedings were settled as early as 22 July 2008.  In short, it was agreed that letter of administration be granted to both the Plaintiff and the Defendant as co-administratrix.

8.The Plaintiff asserts there was a common understanding that the parties should cooperate in obtaining a letter of administration as soon as possible.  However, the Defendant refused to cooperate.  As a result, on 24 December 2020, Master Hui made an unless order to the effect that unless the Defendant responded to certain requisitions raised by the Plaintiff, she be debarred from seeking to be appointed as a co-administratrix of the Deceased’s estate.

9.The Plaintiff says that the Defendant did not comply with the said unless order.  Thus, on 16 August 2021, letter of administration was granted to her as the sole administratrix of the Deceased’s estate.

10.The Plaintiff, acting in the capacity as the administratrix of the Deceased’s estate, commenced the present action on 31 December 2021.

11.In gist, the Plaintiff accuses the Defendant of holding out herself as the administratrix of the Deceased’s estate and renting out the Disputed Lands to third parties as tenants or licensees.  The Plaintiff says that the Defendant holds the rental income arising from the Disputed Lands for the Deceased’s estate as an executor de son tort or a constructive trustee.

12.The Defendant disputes the Plaintiff’s claims.  In short, she says that the Deceased gifted the Disputed Lands to her, and accordingly the Disputed Lands do not form part of the Deceased’s estate.  It appears that the Defendant seeks to rely on the doctrines of common intention constructive trust and/or proprietary estoppel (the material facts of which are pleaded).  

13.On 14 August 2024, the Plaintiff took out the present applications.  

C.  The Application for Preservation Order and/or Proprietary Injunction

C1.  Legal Principles

14.Order 29 rule 2 provides that:

“(1) On the application of any party to a cause or matter the Court may make an order for the detention, custody or preservation of any property which is the subject-matter of the cause or matter, or as to which any question may arise therein.

(2) …

(3) Where the right of any party to a specific fund is in dispute in a cause or matter, the Court may, on the application of a party to the cause or matter, order the fund to be paid into court or otherwise secured.

(4) An order under this rule may be made on such terms, if any, as the Court thinks just.

15.In Gentle Soar Limited v CMBC Capital Finance Limited & Others[2021] HKCFI 3450 at para 36 Keith Yeung J summarised the relevant principles as follows:

“36. … As summarized at Sections C1 and C2 of Mr Ho’s written submissions (citing inter alia Pacific Bulk Investment Ltd v Chu Kong [2020] HKCFI 2825, Samtani v Samtani [2012] 4 HKLRD 872, Liao Chen Toh v Loyal International Enterprises Co Ltd & Ors, HCA 2302/2014 (30 March 2016) and Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041):

(a) For the grant of an interlocutory injunction, the broad requirements are that (a) there is a serious issue to be tried, and (b) the balance of convenience lies in favour of granting or continuing the injunction;

(b) Specifically in relation to the grant of a proprietary injunction or a preservation order:

(i) There is property which is bona fide the subject matter of the cause or matter, or as to which any question may arise;

(ii) Something ought to be done for the security of that property, because for example damages may not be an adequate remedy;

(iii) Unlike application for a Mareva injunction, no risk of dissipation needs to be demonstrated;

(iv) Even if there has been delay in making an application which may lead to refusal of a freezing injunction, a proprietary injunction may nonetheless be granted;

(v) An enquiry into the relative merits of rival claims is not necessary. In respect of the merits of the claim, the party seeking the preservation order only needs to show that there is a serious issue to be tried on the merits on the normal American Cyanamid principles;

(vi) If the opposing party seeks to show that there is no serious issue to be tried, the threshold is high, as it would be necessary to demonstrate that the claim should be struck out;

(vii) There is no strict requirement for an undertaking as to damages where the Court grants a proprietary injunction or a preservation order, albeit that the Court may require such an undertaking ‘where the circumstances warrant’;

(viii) There is no need for P to show that damages would not be an adequate remedy;

(c) As a fundamental principle, the Court at the interlocutory stage would take whichever course that appears to carry the lower risk of injustice if it should turn out that it is wrong;

16.In Lee Chi Keung & Ors v Wong Chi Chin & Ors [2022] HKCFI 3315 at paras 35 to 37, DHCJ Herbert Au-Yeung (as Hebert Au-Yeung J then was) stated:-

35.  The applicable principles for the grant of a preservation order can be found in Hong Kong Civil Procedure 2022, vol. 1, at paragraph 29/8/7:

“ The applicable principles for the grant of a preservation order are: (i) There is property which is bona fide the subject matter of the cause or matter. (ii) Something ought to be done for the security of the property. Part of this inquiry will involve showing that damages may not be an adequate remedy. (iii) Unlike an application for a Mareva injunction, no risk of dissipation needs to be demonstrated. Further, even if there has been delay in making an application which may lead to refusal of a freezing injunction, a proprietary injunction may nonetheless be granted. (iv) An enquiry into the relative merits of rival claims is not necessary. (v) In respect of the merits of the claim, the party seeking the preservation order only needs to show that there is a serious issue to be tried on the merits on the normal American Cyanamid principles. […]”[2] (emphasis added)

36.  In Feng Loy Chuen v Lim Yiong Lin [1977] HKLR 471, Zimmern J refused an application for a preservation order under Order 29 rule 2, on the basis that the plaintiff could be fully compensated by payment if he were successful, and there being no allegation that the defendant would not be good for his money.

37.  The same approach had been adopted by DHCJ Au-Yeung (as she then was) in Samtani v Samtani [2012] 4 HKLRD 872.”

17.In Wason Holdings Limited & Others v BHP International Markets Limited & Another [2018] HKCA 113 at para 38, Barma JA stated:

“…Although their claim may be characterised as proprietary, in the particular circumstances of this case, it is nonetheless a claim to money. Unless there is reason to think that the 1^st defendant will be unable to meet such a claim, there is no particularly pressing need for money to be kept aside to meet it…”

18.In Lee Chi Keung (supra) at paras 64 and 68, DHCJ Herbert Au-Yeung (as he then was) applied Wason Holdings Limited (supra) at para 38. The learned Judge pointed out that although “adequacy of damages” is not a necessary element, this is one of the factors that the Court may take into account.  After all, the question is which course appears to carry the lower risk of injustice if it turns out that the court is wrong.

C2.  Serious Issues to be Tried

19.In paragraphs 13 to 16 of her witness statement filed on 27 May 2024, the Defendant admitted that some of the Disputed Lands were rented out for rental profits, and she used the rental income for her personal benefit.  

20.I accept the Plaintiff has an arguable case that the Defendant has constituted herself as an executor de son tort and/or a constructive trustee.  In William, Mortimer and Snnucks on Executors, Administrators and Probate (22^nd Ed) at para 5-36, the learned authors stated:-

“A person not lawfully appointed executor or administrator and without title to grant may by reason of their own intrusion upon the affairs of the deceased be treated for some purposes as having assumed the executorship. Such an intermeddler is called a tort executor or an executor de son tort (ie of their own wrong). The concept is derived from the principle that a person who has assumed authority where they have none is accountable as if they had that authority.”

“Although there is no duty on a person to take out a grant and become a personal representative, the fact that a person fails to take out a grant and instead intermeddles without a grant may be a reason why such person is not merely an executor de son tort but is also a constructive trustee.”

21.I do not lose sight of the Defendant’s defences.  However, the assertions made by the Defendant are plainly matters for trial.  At trial, the court will adopt a holistic approach, and examine the whole course of conduct of the parties: see Stack v. Dowden [2007] 2 AC 432 at paras 60 and 69 (per Baroness Hale); Mo Ying[2015] 2 HKLRD 985 at para 5.13-5.14 (per Cheung JA);Primecredit Ltd v. Yeung Chun Pang Barry [2017] 4 HKLRD 327at para 1.6 (per Lam VP, as he then was).

22.I cannot see how the factual disputes between the parties can be resolved on paper at this stage.  

23.I am satisfied that the Plaintiff has raised a serious issue to be tried.  

C3.  Adequacy of Damages

24.The starting point is that beneficial ownership follows legal ownership.  Since the legal titles of the Disputed Lands are vested in the Deceased’s estate, the Plaintiff, as the administratrix of the Deceased’s estate, has a prima facie right to preserve the rental income arising from the Disputed Lands: see Liao Chen Toh v Loyal International Enterprises Co Ltd & Ors [2021] HKCFI 164 at para 28 (per DHCJ Douglas Lam SC).

25.However, whilst the Plaintiff’s claim is characterized as proprietary in nature, it is a claim for money.  Therefore, it is open to the court to consider whether damages will be an adequate remedy: see Lee Chi Keung (supra) at para 64; and Wason Holdings Limited (supra) at para 38.

26.For reasons best known to herself, the Defendant has not adduced a shred of evidence to illustrate her financial position and ability to pay damages.  In paragraph 37 of her affirmation in opposition filed on 4 December 2024, the Defendant merely said that she had incurred substantial legal costs in these proceedings and that her financial situation was not very strong[1].

27.On the evidence available to the court, I am not satisfied that the Defendant will be able to satisfy the Plaintiff’s claim for the rental income arising from the Disputed Lands.  I am of the view there is a real risk that the claim for the rental income will be unsatisfied or partly unsatisfied.

28.In this connection, Mr. Jeffrey Tam together with Mr. Colman Li (for the Defendant) submitted that the Plaintiff, in substance, sought a mandatory injunction against the Defendant and that the Plaintiff did not have a clear stance.  They suggested that these were the reasons why the Defendant did not adduce evidence to demonstrate her financial means.

29.For the following reasons, I do not accept Mr. Tam and Mr. Li’s submissions and/or explanations:-

(1)  In her amended statement of claim, the Plaintiff made it clear that the claim for the rental income arising from the Disputed Lands was proprietary in nature.  I disagree that there could be any confusion.

(2)  Even if the Plaintiff merely seeks a mandatory injunction against the Defendant, it is still the case that the claim and/or the proposed injunction order concerns monies.  I cannot see how the Defendant could have allegedly taken the view that her financial ability is irrelevant.  

(3)  In any event, in paragraph 28 of the Plaintiff’s supporting affirmation filed on 15 August 2024, it was expressly pointed out there was a real risk that the rental income would not be available to satisfy the court’s judgment, and the estate of the Deceased could not be adequately compensated.

(4)  Thus, the Defendant must know that her financial ability is at issue.  This explains why the heading above paragraphs 47 to 51 of her affirmation in opposition is titled “The Plaintiff would be compensated by damages”.  However, whilst the Defendant raised various arguments, she did not disclose any information relating to her financial means, and not a shred of evidence was produced.

C4.  Balance of Justice

30.In the premises, Bernard Man SC leading Mr Jason Ko (for the Plaintiff) submitted that the balance of justice lies in favour of granting the preservation order and/or proprietary injunction sought.  They pointed out that if the Defendant succeeds at trial, she will suffer little prejudice as the rental income will be kept in an escrow account. However, if the Plaintiff succeeds at trial, the plaintiff may suffer irreparable harm as there is a real risk that damages would not be an adequate remedy.  

31.I agree with Mr. Man’s submissions and analysis.  

32.However, Mr. Tam (for the Defendant) submitted that the court should refuse the Plaintiff’s application on the ground of delay.  

33.In Re Wako Giken (HK) Co Ltd [2010] 4 HKLRD 121 at paras 24 to 25, Harris J pointed out that it is not sufficient for the defendant to show that the applicant has delayed unreasonably.  It is also necessary to show that “because of the delay in bringing [the] application it would be unreasonable or unjust to grant the order sought by the [applicant]”.

34.In my view, it is necessary to draw a distinction between (i) the rental income arising from the Disputed Lands after the Plaintiff made the present application on 14 August 2024; and (ii) the income arising from the Disputed Lands before the present application was made.  

35.Insofar as the period after the present application is made is concerned:-

(1)  The order sought is prospective in nature.  As such, I am not of the view that the alleged unreasonable delay on the part of the Plaintiff prior to 14 August 2024 is relevant.  

(2)  By taking out the present application on 14 August 2024, the Plaintiff has made it clear to the Defendant that she would take issue with the rental income arising from the Disputed Lands and her stance is that the same should be preserved pending the resolution of this action. 

(3)  I cannot see how it can be said that due to the alleged delay before 14 August 2024, the rental income that arose after 14 August 2024 should not be preserved.  Whilst the Defendant does not assert that she will face financial hardship, this is a real risk that the Plaintiff and/or the Deceased’s estate will not be in a position to recover the rental income in light of the uncertainty as to the Defendant’s financial position.  

(4)  I am of the view justice requires that the rental income that arose after 14 August 2024 be preserved pending the trial of this action.

36.As regards the period before the present application was made:-

(1)  The order sought is retrospective in nature.  As such, the alleged unreasonable delay on the part of the Plaintiff is relevant.

(2)  In my view, there was indeed inordinate delay on the part of the Plaintiff.  In the statement of claim dated 31 December 2021, the Plaintiff was able to plead that the Defendant intermeddled with the Disputed Lands and rented out the same.  There was no reason why the Plaintiff did not pursue the present application until some 32 months later in August 2024.

(3)  Unlike the typical scenario where the plaintiff was defrauded to pay out his funds (see eg Tiger Resort Asia Ltd v Kazou Okada [2019] HKCFI 1415), in the present case, it is not in dispute that the Deceased and the Defendant were in a domestic relationship.  Against this background, it is the Defendant’s case that the Disputed Lands have been gifted to her.  

(4)  According to the Plaintiff’s supporting affirmation, the Defendant started renting out some of the Disputed Lands as early as 2004 (which was 21 years ago), and the rental income that was allegedly pocketed by her exceeded HK$7,698,600.  The period involved was extensive, and the amount involved was substantial.

(5)  Assuming that the Plaintiff’s allegations are true, common sense dictates that it would be difficult and cumbersome for the Defendant to reconstruct the rental affairs of the Disputed Lands.

(6)  In this connection, the Defendant engaged a management company, to handle, inter alios, the affairs of some of the Disputed Lands[2]. She said that many documents were no longer accessible as most institutions only retained files and records for 7 years[3].

(7)  In the premises, irrespective of whether the Plaintiff was guilty of inordinate delay for the period before 31 December 2021 (ie the date of the writ in this action and the statement of claim), I am of the view that it is oppressive for the Plaintiff to seek an extensive order that carries retrospective effect.

37.However, whilst I bear in mind the difficulty faced by the Defendant, I also bear in mind the need to preserve the rental income arising from the Disputed Lands pending the trial of this action.

38.In the premises, the question is: what is the appropriate cut-off date? 

39.For the following reasons, I am of the view that it would be just and fair to order the Defendant to pay the net rental income after 14 August 2017 into the escrow account:-

(1)  As accepted by the Defendant, it is a common practice that commercial entities would keep records and documents for 7 years.  This is obviously for tax and/or compliance purposes.

(2)  When the Plaintiff took out the present application on 14 August 2024, the Defendant ought to know that the Plaintiff sought to preserve the rental income arising from the Property.  From this point of time onwards, there was no reason why the Defendant would have disposed of the rental records. 

(3)  In the circumstances, I am of the view that it would not be oppressive to require the Defendant to account for the rental income since 14 August 2017 (ie 7 years before the Plaintiff took out the present application) while the trial of the present action is pending resolution.  

40.Accordingly, I order the Defendant to pay the net rental income generated from the Disputed Lands after 14 August 2017 into the escrow account and this should be done within 42 days.

41.I direct the parties’ solicitors to liaise with each other as to the arrangement of the escrow account.  If no agreement is reached within 14 days, the parties shall lodge submissions (limited to 3 pages) to this court within 7 days, and the matter will be disposed of on paper.  

42.Following the approach adopted by Anthony Chan J in Xie Wen Yuan v Zeng Mei Yu [2021] 3 HKLRD 894 at para 42, I also order the Defendant to provide a brief account in respect of each of the Disputed Lands at the time of payment, and the brief account shall show and identify (i) the gross rental income; (ii) the expenditure incurred (if any); and (iii) the supporting documents (if any).  

43.Out of caution, I also order that there be liberty to apply.  

D.  The Discovery or Disclosure Application

D1.  Legal Principles

44.In Jade’s Realm Ltd v Director of Land (HCA 1509/2012, 9 January 2015) at para 20, Peter Ng J stated:-

(1)   There is no jurisdiction to make an order for specific discovery under RHC O 24 r 7 unless there is sufficient evidence or prima facie case that: (a) the documents or classes of documents exist which the other party has not disclosed; (b) the documents relate to a matter in issue in the action; and (c) the documents are in the possession, custody or power of the other party. 

(2)   Once it is established that those three prerequisites for jurisdiction do exist, the court has a discretion whether or not to order discovery. 

(3)   The Court will not make an order unless the discovery sought is necessary either for disposing fairly of the cause or matter or for saving costs. 

(4)   The Peruvian Guano test remains the test of relevance.  A document is relevant if:

(i)      it is reasonable to suppose that it contains information which may, not must, either directly or indirectly enable the party requiring the same either to advance his own case or to damage the case of his adversary; or

(ii)   it is a document which may fairly lead the party to a train of inquiry which may have either of those two consequences. 

(5)   For the purpose of discovery, the pleadings have to be looked at broadly. 

(6)   The order must identify with precision the documents or categories of documents which are required to be disclosed, for otherwise the person giving discovery may find himself in serious trouble for swearing to a false affidavit, even though doing his best to give an honest disclosure. 

(7)   Notwithstanding the Peruvian Guano test, “fishing” is not allowed, and discovery should not be oppressive. 

(8)   The respondent may answer an application for specific discovery by an affidavit stating that he does not have the documents, and this will be conclusive at the interlocutory stage. 

D2.  Deliberation

45.As pointed out in paragraph 1(2) above, the Plaintiff seeks all the payment records, all the underlying documents in respect of the income received and the expenses incurred as well as all the correspondence with the tenants/licensees.

46.Mr. Tam submitted that the Plaintiff is effectively seeking a final remedy for an account or enquiry in respect of the rental income arising from the Disputed Lands.

47.However as pointed out by Mr. Man, whilst the Plaintiff prays for an order that there be an account or enquiry[4], she also prays for damages in respect of breach of trust and/or conversion[5].

48.In Libertarian Investments Ltd v Thomas Alexej Hall (2013) 16 HKCFAR 681 at 172, Lord Millet NPJ pointed out that at every stage the plaintiff can elect whether or not to seek an account or enquiry, and he may elect not to call for an account or enquiry if it is unnecessary or unlikely to be fruitful.  

49.In my view, the rental documents sought by the Plaintiff are plainly relevant to the questions relating to the quantum of damages.  These questions will be resolved at the main trial. Whilst the Plaintiff may elect to call for an account or enquiry (which will be dealt with at a subsequent stage), she is also entitled to prosecute her claim for damages.  In the premises, the documents sought by the Plaintiff should be disclosed.  

50.Mr. Tam also submitted that the Plaintiff is seeking to carry out a fishing expedition.  

51.I disagree.  

52.In Trade Practices Commission v CC (NSW) Pty Ltd (1995) 58 FCR 426 at 438C, Lindgren J pointed out that:-

“What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling production of documents where there is already some evidence that a case exists.”

53.As pointed out by Mr. Man:-

(1)  The Plaintiff’s case, which is based on the Deceased’s registered ownership, is most straightforward.  There is no question that the Plaintiff has a solid case.  

(2)   It is the Defendant’s evidence that the Disputed Lands were gifted to her, and it was envisaged that some of them would be rented out for profit.  As such, there must be a prima facie case that there are documents and records that show the rental income and the expenses.  

54.I accept Mr. Man’s submissions.  

55.Mr. Tam also relied on the Defendant’s purported confirmation that she had already disclosed all relevant documents.  

56.First of all, as pointed out by Mr. Man in paragraph 45 of his submissions, the Defendant’s confirmation is not consistent with the objective evidence.  In my view, the inconsistencies cry for explanations. 

57.In any event, I am not satisfied that the Defendant has unequivocally confirmed the matters in question on oath.  For instance:-

(1)  Insofar as the Remaining Portion of Sub-section 3 of Sections A and B of Lot No. 1942 in Demarcation District No. 118, Yuen Long is concerned, the Defendant merely produced the tenancy agreements, some cheques and a termination agreement that came into existence prior to October 2009.  For reasons best known to herself, in her affirmation in opposition, the Defendant did not unequivocally say that these Disputed Lands had not been rented out from 2009 onwards and that there had been no rental documents and payment records after 2009.  

(2)  Likewise, as regards Lo Wai Lot Nos. 148 and 154 in Demarcation District No. 116, Yuen Long, the New Territories, the Defendant merely said that the Plaintiff, through her own means, obtained a license agreement with China Mobile that was signed on around 19 August 2010.  In her affirmation in opposition, the Defendant did not specifically say that this was the only license agreement that had been in existence throughout the years and that she had not been in possession, power and/or custody of any other license agreement and/or payment records.  

58.Having considered the Defendant’s affirmation in opposition, I am of the view that the Defendant has misunderstood her duties to make discovery of documents.  The Defendant thought that she had no duties to disclose the tenancy agreements and payment records as the Disputed Lands do not form part of the Deceased’s estate.  However, this is a matter to be tried in these proceedings.  As pointed out, the documents sought by the Plaintiff are relevant to the Plaintiff’s claims for damages.  Thus, they should be disclosed, such that the issues on damages can be resolved at trial.  

59.In the circumstances, I am of the view that the appropriate course to take is to give the Defendant another opportunity to address the matter cautiously.  She is required to (i) make disclosure of the documents or records that are related to the rental income and expenditure; and (ii) confirm the matter on oath.  Instead of providing some general response in an equivocal manner, the Defendant shall provide a specific response in respect of each of the Disputed Lands, and if the documents in question do not exist, she shall confirm the state of affairs on oath.  

60.In the premises, I order the Defendant to:-

(1)  disclose and produce the following documents that are or have at any time been in her possession, custody or power by way of a list of documents within 28 days:-

(a)  all records in respect of the payments made by the tenants and/or licensees to the Defendant and/or her authorized representative(s) (if any) in respect of the Disputed Lands since 13 September 2004; and

(b)  all supporting and underlying documents (including agreements, receipts, bank records and tax returns) showing the income and expenditure in respect of the Disputed Lands since 13 September 2004; and

(c)  all correspondence, memoranda and other documents between the tenants or licensees and the Defendant and/or her authorized representative(s) (if any) in respect of the Disputed Lands since 13 September 2004.

(2)  verify the aforesaid list of documents by affirmation within 28 days; the Defendant’s affirmation shall state whether the Defendant has or has at any time had in her possession, custody or power of any document in the classes specified above, and if the said documents or any of them have been but are not now in her possession, custody or power, the Defendant shall state when she parted with the same and what has become of the same.  

E.  Order and Disposition

61.I make an order in terms of paragraphs 40 to 43 and 60 above.  

62.I make a costs order nisi that 85% of the costs of the summons dated 14 August 2024 be the Plaintiff’s costs in the cause (with certificate for two counsel).  

63.For the following reasons, I take the view that such costs order is fair and appropriate:-

(1)  Whilst the Plaintiff is by and large the successful party, her applications were not entirely successful.  

(2)  The question whether the Defendant is a beneficial owner of the Disputed Lands is a hotly contested issue that can only be determined at trial.  If the Defendant succeeds at trial, the implication is that the court should not have granted the preservation order and/or proprietary injunction sought by the Plaintiff.  

64.Lastly, I express my gratitude to Mr. Bernard Man SC, Mr. Jason Ko, Mr. Jeffrey Tam and Mr. Colman Li for their most helpful assistance.  

Mr Bernard Man SC and Mr Jason Ko, instructed by Rowdget W. Young & Co for the plaintiff

Mr Jeffrey Tam and Mr Coleman Li, instructed by Ho, Tse, Wai & Partners for the defendant