Msb International Ltd v. Sally Joanna Elaine Bower

DCCJ 3302/2023

[2025] HKDC 487

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3302 OF 2023

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DECISION

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Introduction

1.This is the hearing of the plaintiff’s discovery application and the defendant’s striking out application.

2.The plaintiff supplied horse-related products to The Hong Kong Jockey Club (“HKJC”). The defendant is and was an executive manager of procurement team in HKJC.

3.Mr Morten Lok (“Morten Lok”) was a director of the plaintiff until 18 August 2020.

4.The plaintiff claims that Morten Lok was employed by Keson Limited (“Keson”) after leaving the plaintiff’s company. Due to their friendship, the defendant agreed to help Morten Lok by procuring HKJC to purchase horse-related products from Keson rather than from the plaintiff.

5.The plaintiff’s case is that in around September and October 2020, in breach of her duties to HKJC, the defendant made false representations to HKJC (the “Alleged Representations”).[1] HKJC relied on the Alleged Representations and decided to purchase certain products supplied by Klein Kromhof Houtvezels B. V. (“KKH Netherlands”), Pryde’s Easifeed Pty Ltd (“Pryde’s Australia”) and Thoroughbred Remedies Manufacturing Limited (“TRM Ireland”) (collectively, the “three Suppliers”) from Keson, instead of the plaintiff.

6.As a result of HKJC’s decision, the three Suppliers terminated their distribution agreements with the plaintiff in September and October 2020.

7.The plaintiff avers that the defendant:

(a)  prepared, presented and/or circulated; and/or

(b)  caused, procured and/or authorized the preparation, presentation and/or circulation of

a PowerPoint file which contained the Alleged Representations (the “Alleged PowerPoint File”).

8.The plaintiff further avers that the Alleged PowerPoint File was circulated by Florence Wong of HKJC by email to other staff members on or about 8 October 2020.

9.The defendant denies agreeing to help Morten Lok. She claims she did not procure HKJC to purchase from Keson instead of the plaintiff. She further denies that she or anyone on her behalf made the Alleged Representations or that she prepared, presented, circulated, caused, procured, and/or authorized the preparation, presentation or circulation of the Alleged PowerPoint File containing the Alleged Representations.

10.The pleadings are deemed to be closed on 27 December 2023.

11.On 10 October 2024, the plaintiff applied for an order requiring the defendant to file and serve a further and better list of documents containing:

(a)  all versions of the Alleged PowerPoint File, including all hard copies, soft copies and drafts, containing any representation to the effect of the Alleged Representations; and

(b)  all communications and records, whether in the form of email or otherwise, attaching and/or relating to the Alleged PowerPoint File, and alternatively give specific discovery of those documents

(the “Discovery Application”).

12.On 26 November 2024, the defendant applied to strike out the Writ of Summons and Statement of Claim and sought an order that this action be dismissed (the “Striking Out Application”).

13.On 12 February 2025, pursuant to Master B Mak’s order made at the Case Management Summons hearing on 16 October 2024 (the “CMS Hearing”), the parties filed a Joint Statement of Issues, agreeing on the issues in dispute between them.

14.The parties agree that I should deal with the Striking Out Application first.

Striking Out Application

Applicable legal principles

15.The relevant legal principles are well established. It is only in plain and obvious cases that the court should strike out a claim. To succeed in a striking out application, the claim must be obviously unsustainable, the pleadings unarguably bad, and it must be impossible, not just improbable, for the claim to succeed. If the court does not think the matter to be clear beyond doubt, or if it fails to be satisfied that there is no reasonable cause of action or that the proceedings are frivolous or vexatious, then there should be no striking out.

16.Whilst a striking out application can be made at any time, it should be made promptly and as a rule before the pleadings are closed. The reason for this is obvious – “it is only in plain cases, where a defendant is quite unable to discern what the cause of action against him is, that a statement of claim would be struck out. Where a defendant is able to plead to the claim… it will be very difficult for him to establish that no cause of action is disclosed”: see Chinacast Education Corporation & ors v Chan Tze Ngon & ors (unrep, HCA 1062/2012, 22 May 2015), para 29.

The application

17.The cause of action relied on by the plaintiff is the tort of causing loss by unlawful means. As held by Coleman J in China Concrete Company Limited v Secretary for Justice [2023] HKCFI 2282, paras 91, 93 and 95:

“91. The essential elements of causing loss by unlawful means are that: (1) A uses unlawful means against a third party (2) which interfere with that third party’s freedom to deal with B, (3) with an intention to cause loss to B and (4) actually causing damages to B: see the OBG v Allan case.

…

93. On the element of unlawful means, the majority view in OBG (supra) was that such unlawful means used by A against the third party must be actionable by that third party except where the only reason why it is not actionable is because the third party has suffered no loss…

…

95. Lord Nicholls’ view was set out in §§143-162. He recognized that although the need for ‘unlawful means’ is well established, there is some controversy about the scope of this element. One view is that this concept comprises acts which a person is not permitted to do or has no legal right to do, covering common law torts, statutory torts, crimes, breaches of contract, breaches of trust and equitable obligations, breaches of confidence and so on. The other view is that unlawful means in this context is much narrower and comprise mainly civil wrongs. Lord Nicholls favoured the more expansive view. He said the law seeks to provide a remedy for intentional economic harm caused by unacceptable means and it would be passing strange that the breach of contract should not proscribed but not a wrong…”

18.As regard the intention to cause loss, Lord Nicholls explained in OBG Ltd v Allan [2008] 1 AC 1, at paras 164-166 that:

“164. … A defendant may intend to harm the claimant’s business either as an end in itself or as a means to an end. A defendant may intend to harm the claimant as an end in itself where, for instance, he has a grudge against the claimant. More usually a defendant intentionally inflicts harm on a claimant’s business as a means to an end. He inflicts damage as the means whereby to protect or promote his own economic interests.

165. Intentional harm inflicted against a claimant in either of these circumstances satisfies the mental ingredient of this tort. This is so even if the defendant does not wish to harm the claimant, in the sense that he would prefer that the claimant were not standing in his way.

166. Lesser states of mind do not suffice. A high degree of blameworthiness is called for, because intention serves as the factor which justifies imposing liability on the defendant for loss caused by a wrong otherwise not actionable by the claimant against the defendant. The defendant’s conduct in relation to the loss must be deliberate. In particular, a defendant’s foresight that his unlawful conduct may or will probably damage the claimant cannot be equated with intention for this purpose. The defendant must intend to injure the claimant. This intent must be a cause of the defendant’s conduct…”

19.Mr Anthony Chan SC (who appeared with Mr William Wong) submitted that the Statement of Claim fails to plead all the necessary elements of the tort of causing loss by unlawful means as well as the underlying unlawful means of tort of deceit.

20.For the reasons stated below, I find that the defendant has failed to satisfy the burden of showing a plain and obvious case for striking out the plaintiff’s claim.

21.I will deal with the constituent elements of the tort of causing loss by unlawful means in turn. In dealing with the element of unlawful means, I will explain why the defendant’s reliance on the plaintiff’s alleged failure to plead the constituent elements of the tort of deceit is misplaced.

(1)  Unlawful means

22.First, the defendant’s submissions regarding unlawful means are based on her understanding that the unlawful means relied upon by the plaintiff is the tort of deceit. Mr Chan on behalf on the defendant submitted that the plaintiff has failed to plead all the constituent elements of tort of deceit.

23.However, Mr Victor Dawes SC (who appeared with Mr Lau Ka Kin) on behalf of the plaintiff explained that the unlawful means relied upon by the plaintiff is not deceit. The plaintiff pleaded in paragraphs 3 and 13 of the Statement of Claim that the plaintiff is relying on the defendant’s alleged breach of her express and/or implied contractual duties to HKJC, including duty of fidelity, duty to exercise skill and duty to exercise reasonable care.

24.In the premises, the plaintiff is not relying on the tort of deceit as the unlawful means, but the alleged breach of the defendant’s duties to her employer HKJC by making the Alleged Representations, which are false, with the purpose of benefiting her friend Morten Lok. In the premises, is not necessary for the plaintiff to plead the constituent elements of the tort of deceit.

25.It is the plaintiff’s case that the defendant made the Alleged Representations, either knowing they were false or recklessly and not caring whether they were true or false, in breach of the aforesaid duties: see Statement of Claim, paras 9-13.

26.As submitted by Mr Dawes, given that the plaintiff is not relying on the tort of deceit, it suffices for the plaintiff to plead that the Alleged Representations are false. The defendant would have breached her duty of fidelity whether she made such false representations intentionally, recklessly or negligently.

27.The first complaint by the defendant premised on the underlying wrong being the tort of deceit therefore falls away.

28.Secondly, in respect of the making of the Alleged Representations, the plaintiff has pleaded:

(a)  in paragraph 9 of the Statement of Claim that the defendant made the Alleged Representations to the directors, officers and/or other employees of HKJC in around September and October 2020; and

(b)  in paragraph 10 that the defendant had prepared, presented and/or circulated, and/or caused, procured, and/or authorised the preparation, presentation and/or circulation of the Alleged PowerPoint File which contained the Alleged Representations.

29.The plaintiff has therefore pleaded that the defendant made the Alleged Representations and should be responsible for the Alleged Representations. In fact, this is precisely issues 3 and 4 of the Joint Statement of Issues filed by the parties, where they referred to the aforesaid paragraphs of the Statement of Claim and paragraph 13 of the Defence.

30.The truth of the Alleged Representations is in question.[2] At least on the face of the pleadings, a Mr Anders Bo Oesterballe is the sole shareholder and director of Keson, and not Morten Lok. Further, it is the plaintiff’s case that it had subsisting distribution agreements with the three Suppliers at the time of the Alleged Representations. Such distribution agreements were only terminated in around late September 2020 to mid-October 2020.[3] It cannot be said that the plaintiff’s case is unarguable.

31.Thirdly, although the defendant contends that it is beyond argument that HKJC did not act upon the Alleged Representations when deciding to purchase from Keson, I do not agree that the plaintiff’s alleged reliance by HKJC on the Alleged Representations is unsustainable. It is not obvious as to whether HKJC acted upon the Alleged Representations.

32.It is the plaintiff’s case that the Alleged Representations were made in around September and October 2020. This is supported by the PowerPoint file disclosed by defendant, the first page of which stated that it was prepared on 22 September 2020. It is trite that disputed facts are to be taken in favour of the plaintiff in deciding a striking out application. Further, there appears to be no dispute between the parties that Keson became registered as HKJC’s supplier the day after, ie 23 September 2020. In the premises, whether HKJC acted upon the Alleged Representations remains a factual question to be tried.[4]

33.Further, I do not agree that by relying on the Alleged PowerPoint File circulated by Florence Wong by the email of 8 October 2020 in the Reply, the plaintiff has committed to the date of the Alleged Representations being made on 8 October 2020. It remains the plaintiff’s pleaded case in the Statement of Claim that the Alleged Representations were made in around September and October 2020. The Alleged PowerPoint File is but an important piece of evidence relied on by the plaintiff.

34.Fourthly, as to the defendant’s allegation that it was the three Suppliers’ own decisions to terminate the plaintiff’s distribution agreements that had led to HKJC’s decision to purchase from Keson, this is again a factual issue to be tried.[5]

35.The defendant relied on the letter from KKH Netherlands to HKJC dated 7 September 2020 informing HKJC that the sole distribution right of their products have been granted to Keson in place of the plaintiff and submitted that the distribution agreement with KKH Netherlands was terminated in early September 2020, before the making of the Alleged Representations. However, based on the Defendant’s Answer to Request for Further and Better Particulars of the Defence, the said letter was only received by HKJC on 6 October 2020. It cannot be said that the plaintiff’s plea that the termination of distribution agreements was due to HKJC’s decision is unarguable or unsustainable.

36.Finally, the defendant argued that the plaintiff did not plead the requisite intention that HKJC should act on the Alleged Representations. Such complaint falls away when it has been clarified that the underlying wrong relied on by the plaintiff is not deceit, but breach of duties. The commission of the latter unlawful act does not depend on the plaintiff’s intention that HKJC should act on the Alleged Representations.

37.In any event, in paragraphs 4 and 8 of the Statement of Claim, the plaintiff pleaded that the defendant and Morten Lok are good friends, and the defendant agreed to help him by procuring HKJC to purchase horse-related products from Keson instead of the plaintiff. Reading the Statement of Claim as a whole, it is obvious that it is the plaintiff’s case that the defendant made the Alleged Representation intending that HKJC should act on them, thereby preferring to deal with Morten Lok and not the plaintiff.[6]

(2)  Interference

38.First, Mr Chan said that there is no plea of interference in the Statement of Claim or that what is pleaded cannot amount to interference required by law. Mr Chan says it is nonsensical to suggest that the Alleged Representations would interfere with HKJC’s freedom to deal with the plaintiff.

39.I disagree. The defendant is a senior employee of HKJC and was the person who the plaintiff had been dealing with. It is not unarguable that her conduct would interfere with HKJC’s freedom to deal with the plaintiff.

40.It is the plaintiff’s case in paragraphs 14 and 15 of the Statement of Claim that HKJC had already placed purchase orders with the plaintiff. In reliance on the Alleged Representations, HKJC decided to purchase the three Suppliers’ products from Keson instead of the plaintiff. As a result of HKJC’s decision, the three Suppliers terminated their distribution agreements with the plaintiff.[7]

41.I find that the element of interference is sufficiently pleaded. The plaintiff’s pleaded case is that the defendant made the Alleged Representations intending that HKJC should act on them, thereby preferring to deal with Morten Lok and not the plaintiff.

42.Secondly, Mr Chan submitted that there is no plea that the defendant persuaded KKH Netherlands and TRM Ireland to stop supplying products to the plaintiff. As explained above, it is the plaintiff’s case that as a result of HKJC’s decision to purchase from Keson made in reliance on the Alleged Representations, the three Suppliers terminated their distribution agreements with the plaintiff. Whether this can be proved is a matter for trial.

43.Thirdly, Mr Chan said that two of the three Suppliers already decided to terminate the distribution agreement with the plaintiff on respectively 7 September 2020 and 8 September 2020, and this is the reason why the plaintiff could not complete the purchase orders. As mentioned above, at least on the face of the pleadings, the distribution agreements were only terminated in late September 2020 to mid-October 2020. Further, the plaintiff only received the letter from KKH Netherlands to HKJC dated 7 September 2020 informing HKJC that the sole distribution right of their products have been granted to Keson in place of the plaintiff on 6 October 2020. In the premises, the reason of the three Suppliers’ terminating the distribution agreements and whether the Alleged Representations caused the plaintiff’s purchase orders to be diverted to Keson are matters for trial.

(3)  Intention to cause loss

44.Mr Chan submitted that the plaintiff’s plea that the defendant did what she did because she wanted to help her friend Morten Lok is not sufficient for the purpose of pleading this element of the tort.

45.As held in OBG v Allan (supra) per Lord Nicholls in the passage cited above, the mental ingredient of this tort is satisfied either when a defendant intends to harm the plaintiff as an end in itself, or when he intentionally inflicts harm on a plaintiff’s business as a means to an end.

46.On the plaintiff’s case, by making the Alleged Representations to HKJC in breach of her duties, the defendant intended that HKJC should act on the Alleged Representations, thereby preferring to deal with Morten Lok and not the plaintiff. In so doing, the defendant intentionally inflicts harm on the plaintiff’s business as a means to the end of giving her friend Morten Lok business. In this regard, she intends to injure the plaintiff.

47.Mr Chan submitted that it is plain from the defendant’s email dated 25 August 2020 that the defendant had no intention to injure the plaintiff at all, but was merely protecting HKJC’s interest in maintaining a stable supply of horse-related products. However, this remains an issue to be tried and cannot be decided at this stage.

(4)  Damages

48.Finally, the defendant argued that the plaintiff has failed to plead that the defendant’s alleged unlawful act if substantiated has caused damage to the plaintiff. This is not correct. The plaintiff has pleaded in paragraph 15 that certain purchase orders placed by HKJC with the plaintiff were diverted to Keson due to the defendant’s acts. Particulars of the purchase orders, including the relevant amounts were then pleaded. In paragraph 16, the plaintiff pleaded that the defendant intended to cause and has caused loss to the plaintiff.

49.I find that this element is sufficiently pleaded. The amount of damages claimed by the plaintiff is clear from the Statement of Claim, rather than “at large” as suggested by the defendant.

(5)  Other miscellaneous points

50.First, the defendant argued that the Alleged PowerPoint File does not contain the Alleged Representations and even if it does, such representations were clearly not false in the manner contended by the plaintiff. This is clearly a factual dispute to be tried, as acknowledged by the parties in issue 5 of the Joint Statement of Issues.

51.Whether the 1^st Representation means that the plaintiff did not have any distribution agreement with the three Suppliers at the time of the representation (as contended by the plaintiff), or whether there was a possibility of change going forward in that the plaintiff may no longer be the distributor for the three Suppliers (as contended by the defendant), is not plain and obvious. It is something which cannot be decided at this stage.

52.As to the 2^nd Representation, whether it means that Morten Lok has set up and registered his own company Keson with HKJC (as contended by the plaintiff), or that Morten Lok has moved from the plaintiff to Keson and successfully registered Keson with HKJC as a registered supplier, is similarly not plain and obvious. It is also an issue to be tried and cannot be decided here.

53.Further, first, on the face of the Alleged PowerPoint File, it does contain the Alleged Representations. Secondly, for reasons explained above, it cannot be said that it is unarguable that the Alleged Representations are false.

54.Finally, having filed a Joint Statement of Issues, listing out 12 agreed issues to be tried, the defendant cannot seriously complain that she has any problem with discerning what the cause of action against her was.

55.For all the reasons above, I do not find the plaintiff’s claim to be obviously unsustainable, unarguably bad, or impossible to succeed. I am also not satisfied that there is no reasonable cause of action, that the claim is scandalous, frivolous or vexatious, that it may prejudice the fair trial of the action, or that it is an abuse of process. I therefore dismiss the Striking Out Application.

Discovery Application

56.The plaintiff took out the Discovery Application on 10 October 2024. After the Discovery Application was taken out, the defendant:

(a)  filed her Supplemental List of Documents dated 15 October 2024 (“D’s SLOD”), disclosing (i) Florence Wong’s email dated 8 October 2020, attaching inter alia a PowerPoint file and (ii) two email chains; and

(b)  filed her 3^rd Affirmation dated 28 January 2025 (“Bower 3^rd”), affirming that she has disclosed all documents in her possession, custody or power relevant to the issues in this action.

57.In light of the above, it became unnecessary for the plaintiff to pursue the Discovery Application, and the only remaining question is costs.

58.The following procedural history leading up to this hearing is relevant to the issue of costs.

(a)  On 17 June 2024, the plaintiff wrote to the defendant, seeking discovery of the email pleaded in the Reply, being an email circulated by Florence Wong on or about 8 October 2020 with the subject “MSB & Keson Limited Distribution Agreement Review”, the PowerPoint file attached to it, draft(s) of the PowerPoint file and communications relating thereto.

(b)  On 8 July 2024, the defendant wrote to plaintiff, stating inter alia that the alleged email does not exist, the defendant never prepared, presented, circulated, caused procured and/or authorised the preparation, presentation or circulation of a PowerPoint file containing the Alleged Representations, and the defendant does not have any drafts of the PowerPoint file in her possession custody or power etc. The defendant also stated that plaintiff had failed to show the relevance of the communications and records sought.

(c)  On 16 August 2024, the parties exchanged their witness statements. The defendant refers to certain PowerPoint slides in her witness statement.

(d)  In view of the defendant’s admission of the existence of certain PowerPoint slides, on respectively 10 September 2024 and 20 September 2024, the plaintiff reiterated the discovery requests.

(e)  On 4 October 2024, the defendant filed her Timetabling Questionnaire, stating that she did not intend to serve any supplemental list of documents.

(f)  On 10 October 2024, the defendant indicated that she had obtained counsel’s advice and would respond in a few days and shall endeavour to revert before the CMS Hearing on 16 October 2024.

(g)  On the same day, in light of the upcoming CMS Hearing, the plaintiff took out the Discovery Application.

(h)  On 15 October 2024, the defendant filed D’s SLOD disclosing (i) Florence Wong’s email dated 8 October 2020, attaching inter alia a PowerPoint file and (ii) two email chains.

(i)  On 12 November 2024, the defendant filed her 1^st Affirmation, affirming that the draft(s) of the PowerPoint file sought by the plaintiff “does not exist and at least not in the Email Account which the Plaintiff has purportedly argued that [she] supposedly have read”.

(j)  On 19 November 2024, the plaintiff wrote to the defendant, pointing out that the defendant had suppressed discovery, the inadequacy of the defendant’s 1^st Affirmation in failing to affirm whether the alleged draft PowerPoint file existed outside her work email account and insisting that the defendant do provide a verifying affidavit.

(k)  On 28 January 2025, the defendant filed Bower 3^rd in opposition to the Discovery Application, confirming that she had disclosed all documents in her possession, custody or power relevant to the issues in this action.

(l)  On 19 February 2025, the plaintiff wrote to the defendant, stating that in view of Bower 3^rd it was unnecessary for the plaintiff to pursue the Discovery Application and asking the defendant to bear the plaintiff’s costs of the application.

(m)  On 27 February 2025, the defendant wrote to the plaintiff, disagreeing that she should bear the costs of the Discovery Application.

59.Mr Chan submitted that the defendant should be entitled to the costs of the Discovery Summons and contended that the application was taken out prematurely given the defendant’s indication on 10 October 2024 that she would revert before the CMS Hearing.

60.However, in the letter dated 10 October 2024, the defendant did not indicate that she would produce the documents. All that she said was that she would “endeavour to respond to the Plaintiff before the [CMS] hearing on 16 October 2024”. Given the imminence of the CMS Hearing, I find it reasonable for the plaintiff to take out the Discovery Application on that day.

61.Mr Chan argued that the plaintiff’s requests are imprecise, too broad, constantly evolving, and have no temporal limit. However, having read the pleadings and the correspondence between the parties, I find that there can be no doubt or uncertainty as to what documents the plaintiff was asking for since 17 June 2024. In fact, the defendant was able to produce those documents in D’s SLOD. This begs the question as to why the defendant did not see fit to produce them in the first place and in any event before the Discovery Application was taken out.

62.In point of fact, in her solicitors’ letter dated 8 July 2024, the defendant even denied the existence of Florence Wong’s email on or about 8 October 2020 with the alleged subject. Whilst the email eventually produced by the defendant dated 8 October 2020 has a different subject, the defendant could not reasonably be under any misconception that such email, attaching the crucial PowerPoint file pleaded by the plaintiff and mentioned in the defendant’s own witness statement, is irrelevant to the issues in this action and does not require production.

63.I agree with Mr Dawes that the Discovery Application has led to the defendant disclosing the PowerPoint file and the emails in D’s SLOD, which are clearly relevant to the issues in dispute.

64.I also agree that the defendant’s 1^st Affirmation which stated that the draft PowerPoint sought “does not exist and at least not in the Email Account” was insufficient to dispose of the Discovery Application. This is because the defendant did not state whether she has the drafts in her possession, custody or power generally, instead of in the specific work email account.

65.It became clear to the parties after the filing of Bower 3^rd by the defendant that it was unnecessary for the plaintiff to pursue the Discovery Application. However, by that time, most, if not all, of the costs of the Discovery Application had been incurred. Whilst the parties had tried to deal with the issue of costs by correspondence, they were unable to come to any agreement. In the premises, this hearing is unavoidable.

66.By reason of the above, I find that the defendant should bear the plaintiff’s costs of and occasioned by the Discovery Application.

Conclusion

67.For the reasons above, I dismiss the Striking Out Application and make no order on the Discovery Application save as to costs.

68.As to costs, I make a costs order nisi that:

(a)  The defendant do pay the plaintiff’s costs of and occasioned by the Striking Out Application, with certificate for one counsel, to be summarily assessed.

(b)  The defendant do pay the plaintiff’s costs of and occasioned by the Discovery Application, with certificate for one counsel, to be summarily assessed.

69.Considering that these proceedings are in the District Court and the applications are relatively straightforward, Mr Dawes fairly accepted that the certificate for counsel should cover the fees of the plaintiff’s junior counsel, Mr Lau.

70.Should any party seek to vary the above costs order nisi, such party should take out an application within 14 days from the date of this decision.

71.The plaintiff has submitted its Statements of Costs dated 11 March 2025 for respectively the Striking Out Application and the Discovery Application. Should there be no application to vary the above costs order nisi, I order that the defendant do file and serve her Lists of Objection to the plaintiff’s Statements of Costs within 21 days from the date of this decision. The court will then summarily assess the plaintiff’s costs on paper.

Mr Victor Dawes, SC and Mr Lau Ka Kin, instructed by Cheung & Yip, for the plaintiff

Mr Anthony Chan, SC and Mr William Wong, instructed by Deacons, for the defendant