Wu Jun v. Captain Holdings Ltd (in Compulsory Liquidation) and Others

HCA 106/2022

[2025] HKCFI 5787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 106 OF 2022

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BETWEEN

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DECISION

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INTRODUCTION

1.This Decision deals with the costs of the summons filed by the 4^th defendant on 30 April 2025 for discovery against the plaintiff (“the Summons”), which has been withdrawn pursuant to leave granted by this Court on 12 September 2025.

BACKGROUND

2.As far as the parties’ respective cases in this action are concerned, for the purpose of this Decision, it suffices for me to state that, in gist, the plaintiff claims that he is the victim of a scam disguised as a gold bar purchase and leaseback scheme (“the Scheme”)  involving the defendants, which defrauded him of over HK$22 million.  It is his case that the Scheme never existed.  On the other hand, the 4^th defendant denies that he had any knowledge of the alleged fraudulent design, and he alleged that he believed the Scheme was genuine at all material times.

3.In support of his case, the plaintiff has filed the witness statements of himself, Mr So Ho Ming (i.e. the 5^th defendant)[1], Mr Kau Ma Shing (i.e. the 6^th defendant)[2] and Mr Li Wing Cheung on 5 June 2023:

(1)  In the plaintiff’s own witness statement, having alleged that “the defendants were obviously under an agreement to combine together to conduct fraudulent misrepresentation against [him] to defraud [him]”[3] and that he had made a report to the police on 23 April 2020[4], he added:

“41. There were news reports dated 4 November 2020 relating to action taken by police to arrest individuals including shareholders of listed companies for fraudulent scheme involving gold bar purchase and lease-back for onward lease to listed companies. I have verified with the police that this relates to the report made by me.

42.  I made a further report to the police in Hong Kong on around 24 August 2021 to supplement information.”

(2)  In the 5^th defendant’s witness statement, he stated at paragraphs 69 and 71 that:

“69. 2019年11月7日，本人到荃灣警署就嘉柏倫控股 ([i.e. the 1^st defendant])  的事情報警，希望由警方處理該事件，但報案室表示因為本人並不是受害者，所以不能立案。2020年4月26日，本人就嘉柏倫 “金尊1號” 事件於網上電子報案系統報案 (電子報案編號ERC2004262040225)  。”

“71. 本人願意就上述證言出庭作證，或者上述事宜在法庭上開展進一步調查時，並提供相關的證據文件、語音和材料等。”

(3)  In the 6^th defendant’s witness statement, he stated that:

“14. 本人是在2020年的年末 (大約11月份時)，被商業犯罪調查科拘捕才知道嘉柏倫控股、堅固金業及其關聯公司和資源控股涉嫌欺詐，本人在接受調查時，如實向商業犯罪調查科的警員陳述了本人所有知曉的資訊。

15.  本人願意就上述證言出庭作證，或者上述事宜在法庭上開展進一步調查時，並提供相關的證據文件、語音和材料等。”

(4)  In Mr Li Wing Cheung’s witness statement, he asserted that:

“17. 我是在2020年11月，被商業犯罪調查科拘捕調查時，才證實了我心中的猜測，嘉柏倫控股、資源控股、堅固金業及其關聯公司的確經過精心設計，編制了虛假投資產品、虛假的實物黃金交易、虛假的實物黃金租賃以及虛假的宣傳和陳述 ，以虛假聲明及／或宣傳等手段騙取投資人資金為目的 ，涉嫌欺詐犯罪。我在接受調查時，如實向商業犯罪調查科的警員陳述和提供了所有我所知曉的資訊。

18.  我願意就上述證言出庭作證，或者上述事宜在法庭上開展進一步調查時，並提供相關的證據文件、語音和材料等。”

4.On 30 December 2024, the 4^th defendant’s solicitors wrote to the plaintiff’s solicitors and sought production of, inter alia, various witness statements made to the police by the 5^th defendant, the 6^th defendant and Mr Li Wing Cheung (collectively, “the Statements to Police”).

5.By letter dated 7 January 2025, the plaintiff’s solicitors declined the 4^th defendant’s requests, on the grounds that:

(1)  the Statements to Police were neither relevant nor necessary for fairly disposing of the matter in issue or for saving costs, for the relevant witnesses had already set out in their respective witness statements in the present action all that they knew concerning the dispute, and it was expected that they would have revealed to the police substantially what they set out in those witness statements (if not less);

(2)  the 4^th defendant’s requests were no more than fishing expedition;

(3)  discovery which solely relates to credit is not allowed;

(4)  the plaintiff has not seen nor had in his possession any Statements to Police, nor were those statements in the plaintiff’s custody or power. 

6.On 5 March 2025, Master Hui imposed an unless order on the 4^th defendant, and directed that he shall be debarred from taking out any specific discovery application against the plaintiff for disclosure of witness statements given to the Police unless he did so by 4pm on 30 April 2025 (“the Unless Order”).

7.On the same day, the 4^th defendant requested the plaintiff’s solicitors for the disclosure of the Statements to Police of the 5^th and 6^th defendants again together with the further police report made by the plaintiff (“the plaintiff’s Report to Police”), and cited, among other things, paragraph 24/10/1 of volume 1 of Hong Kong Civil Procedure 2025 in support.

8.On 12 March 2025, the 4^th defendant’s solicitors wrote to the 5^th and 6^th defendants separately and asked for production of their respective Statements to Police.

9.On 28 March 2025, the plaintiff’s solicitors informed the 4^th defendant’s solicitors that the police had rejected the plaintiff’s requests for copies of the plaintiff’s Report to Police and the Statements to Police of the 5^th defendant and the 6^th defendant.

10.On 10 April 2025, the 4^th defendant’s solicitors requested the plaintiff’s solicitors to provide copies of the plaintiff’s Report to Police and Mr Li Wing Cheung’s Statement to Police, and expressly referred to Order 24 rules 10 and 11A in support.  Letters of similar content were also sent to the 5^th and 6^th defendants.

11.On 24 April 2025, the 4^th defendant’s solicitors wrote further to the plaintiff’s solicitors, and requested for production of the Statements to Police of the 5^th and 6^th defendants within 7 days from the date of this letter.  This letter reads:

“Further to our letter dated 10 April 2025 and for avoidance of doubt and pursuant to O.24 rr.10 and 11A of the Rules of the High Court (Cap.4A), we write to request copies of the following documents : -

1. The report made by the 5^th Defendant via the online electronic reporting system (No. ERC2004262040225)  referred to in §69 of 蘇浩明的證人陳述書dated 11 September 2022; and

2. Records of statement(s)  made by the 6^th Defendant to investigators of the Commercial Crime Bureau of the Hong Kong Police Force in November 2020 referred to in §14 of 裘馬誠的證人陳述書dated 31 January 2023.

Please let us have the said documents within 7 days from the date of this letter. We undertake to pay your reasonable photocopying charges.

In the meantime, our client’s rights are hereby expressly reserved.”

12.On 30 April 2025, the 4^th defendant took out the Summons, which was served on the plaintiff’s solicitors at around 3pm on that day.  The application under the Summons was made pursuant to, inter alia, Order 24 rule 10 of the Rules of the High Court (“RHC”), and the documents sought were:

(1)  The plaintiff’s Report to Police referred to in paragraph 42 of his witness statement;

(2)  Mr Li Wing Cheung’s Statement to Police referred to in paragraph 17 of his witness statement;

(3)  The 5^th defendant’s Statement to Police referred to in paragraph 69 of his witness statement;

(4)  The 6^th defendant’s Statement to Police referred to in paragraph 14 of his witness statement.

(collectively, “the Requested Documents”)

13.On the same day, the 4^th defendant also took out a summons against the 5^th defendant and the 6^th defendant respectively (“the D5 Summons” and “the D6 Summons”)  for production of their respective Statements to Police.

14.The plaintiff’s solicitors faxed a letter to the 4^th defendant’s solicitors at 5:52pm on the same day, to which the plaintiff’s Report to Police was attached.  In the letter, the plaintiff’s solicitors also asserted that the Statements to Police of the 5^th and 6^th defendants were not in the plaintiff’s possession, custody or power.

15.On 6 May 2025, the plaintiff’s solicitors wrote further to the 4^th defendant’s solicitors and alleged that the application made under the Summons was “an obvious abuse of process” for the following reasons:

(1)  Pursuant to the letter of the 4^th defendant’s solicitors dated 24 April 2025, the plaintiff could reply within 7 days (i.e. by 1 May 2025);

(2)  The 4^th defendant’s solicitors had been informed previously that none of the Statements to Police of the 5^th defendant, 6^th defendant and Mr Li Wing Cheung was in the plaintiff’s possession, custody or power which was not disputed.

16.In the same letter, while the plaintiff’s solicitors alleged that the plaintiff “had exhausted his means to get hold of” the Statements to Police, they had never referred to any effort on their part (or on the plaintiff’s part)  to ask the 5^th defendant, the 6^th defendant and Mr Li Wing Cheung directly for the documents. 

17.On 8 May 2025, the 4^th defendant’s solicitors replied to the plaintiff’s solicitors, and pointed out, among other things, that the plaintiff should be able to contact his witnesses and obtain the relevant documents from them.

18.It was only on 9 May 2025 that the plaintiff’s solicitors informed the 4^th defendant’s solicitors by letter that the plaintiff has approached the 5^th defendant, the 6^th defendant and Mr Li Wing Cheung for the documents requested, and that they had rejected the plaintiff’s requests.

19.The D5 Summons and the D6 Summons were initially fixed for call-over hearings on 13 May 2025, which were adjourned to 27 May 2025, whereupon an order in terms of those summonses was made by consent.  Their respective Statements to Police were subsequently produced by the 5^th and 6^th defendants pursuant to the said order.

20.On 27 May 2025, Mr Li Wing Cheung also tendered his Statement to Police to the 4^th defendant.

21.By consent, leave has been granted on 12 September 2025 to the 4^th defendant to withdraw the Summons. However, the parties could not agree on the costs relating thereto.  Hence this Decision on costs.

LEGAL PRINCIPLES

22.The legal principles applicable to the determination of costs of a withdrawn summons are trite.

23.In China Baoli Technologies Holdings Limited (formerly known as Rex Global Entertainment Holdings Limited)  v Orient Equal International Group Limited & Others [2021] HKCA 1609, Barma JA had the following to say:

“It is, of course, trite that costs and the basis of taxation are in the discretion of the court. Generally speaking, upon an application for leave to discontinue, the discontinuing party will be required to pay the costs of the other party, unless exceptional circumstances can be shown to justify a different order. The fact that the discontinuance was caused by the issues becoming academic does not of itself justify departure from this starting point as a matter of discretion: Anmol Kumar Sawlani v Yeshma Gobindram Sawlani (unreported, HCA 2231/2011, 9 May 2013, [10]-[15], per Recorder Shieh SC).”

24.Barma JA had also referred to the following principles in the same Decision:

“(1)  It has been said that the starting point above may be departed from where the withdrawing/discontinuing party can show, for example, that the proceedings have become academic: Trend Publishing (HK)  Ltd v Vivien Chan & Co (a firm) [1996] 2 HKLR 227, at 230H-J, per Keith J.

(2)  If the withdrawal/discontinuation was due to something done by the defendant, after the issuance of proceedings, which rendered it unnecessary or academic for the plaintiff to proceed with the proceedings, this may justify awarding costs to the plaintiff: Re Peaktop Technologies (USA)  Hong Kong Ltd [2007] 4 HKLRD 207, [8], per Barma J (as he then was).

(3)    One may also depart from the starting point where the withdrawing/discontinuing party shows that he will succeed on the substantive issue: Re Fook Lam Moon Restaurant Ltd (unreported, HCMP 438/2010, 8 December 2015), [40], per To J.  How far the court will be prepared to look into the substantive issues will depend on the circumstances of each case, such as the amount of costs at stake, the conduct of the parties, and whether evidence needs to be adduced.  The court may take a broad brush approach on the basis of the available materials: Re Fook Lam Moon (supra), [41], [45], [50].”

25.It has also been held that, to persuade the court to depart from the general rule, the minimum a plaintiff has to do is to show that the discontinuance is for reasons other than an acknowledgment of defeat or likely defeat: Re Fook Lam Moon (HCMP 438/2010, unreported, 8 December 2015), at [40].

26.At the end of the day, the Court has to take into account the circumstances of the particular case which is before it and consider what is just in those circumstances.

THE PARTIES’ RESPECTIVE STANCES

27.Both the plaintiff and the 4^th defendant asked for costs of the Summons. 

28.In gist, the plaintiff argued that:

(1)  The Summons was groundless, abusive and improper;

(2)  In any event, there was no basis for the 4^th defendant to seek any of the Statements to Police by Mr Li Wing Cheung, the 5^th defendant and the 6^th defendant against the plaintiff;

(3)  The motive of the 4^th defendant in asking for the Statements to Police by Mr Li Wing Cheung, the 5^th defendant and the 6^th defendant was for harassing the plaintiff and wasting his costs;

(4)  There was no reason of calling upon the plaintiff to bear the consequence of a confusing and problematic timeline of the 4^th defendant’s own making;

(5)  The plaintiff had adopted a fair and reasonable attitude throughout;

(6)  The evidence against the 4^th defendant in the present case is overwhelming;

(7)  The 4^th defendant’s taking out of the Summons was so improper that he should be ordered to bear the costs personally despite the fact that he is a legally-aided person, pursuant to section 17(3)  of the Legal Aid Ordinance (Cap.91, Laws of Hong Kong).

29.The 4^th defendant’s arguments may be summarised as follows:

(1)  The plaintiff had never at any stage denied that he is required to produce the plaintiff’s Report to Police.  His persistent refusal to disclose it, absent any good cause, justified the issuance of the Summons on this ground alone;

(2)  Since the Requested Documents were referred to in the witness statements filed by the plaintiff, the burden is on the plaintiff to show good cause for refusing to produce such documents, and the plaintiff has failed to discharge such a burden;

(3)  The Requested Documents are plainly relevant in the action;

(4)  The 4^th defendant was at the end of the day successful in terms of obtaining the Requested Documents.

MY VIEW

30.Before I set out my view, it is important to emphasise that one of the bases of the 4^th defendant’s discovery application is Order 24 rule 10 of the RHC which stipulates that:

“(1)  Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings, affidavits or witness statements served under Order 38, rule 2A, or experts’ reports, reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.

(2)  The party on whom a notice is served under paragraph (1)  must, within 4 days after service of the notice, serve on the party giving the notice a notice stating a time within 7 days after the service thereof at which the documents, or such of them as he does not object to produce, may be inspected at a place specified in the notice, and stating which (if any)  of the documents he objects to produce and on what grounds.”

31.Under Order 24 rule 11(1)  of the RHC, it is stipulated that:

“If a party who is required by rule 9 to serve such a notice as is therein mentioned or who is served with a notice under rule 10(1)—

(a)  fails to serve a notice under rule 9 or, as the case may be, rule 10(2), or

(b)  objects to produce any document for inspection, or

(c)  offers inspection at a time or place such that, in the opinion of the Court, it is unreasonable to offer inspection then or, as the case may be, there,

then, subject to rule 13(1), the Court may, on the application of the party entitled to inspection, make an order for production of the documents in question for inspection at such time and place, and in such manner, as it thinks fit.”

32.Order 24 rule 13(1)  further provides that:

“No order for the production of any documents for inspection or to the Court or for the supply of a copy of any document shall be made under any of the foregoing rules unless the Court is of opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs.”

33.The combined effect of the above provisions has been considered in Moulin Global Eyecare Holdings Limited (in liquidation)  formerly known as Moulin International Holdings Limited v Olivia Lee Sin Mei [2013] 3 HKLRD 72 (CA), in which Fok JA (as Fok PJ then was)  had the following to say:

“31. I have set out above the rules of Court relevant to the present appeal. It is clear from those rules and from the authorities that have considered them (or the precursors to those rules)  that there is a distinction between discovery of documents in an action in general and an application for production of documents referred to in pleadings or affidavits: see, in this respect, Quilter v Heatly per Lindley LJ at p. 49 and Shun Kai Finance Co Ltd v Japan Leasing (HK)  Ltd per Rogers VP at pp. 523J-525B.

32. In the latter situation, where a party has referred to a document in his pleading or affidavit, the opposite party has a prima facie entitlement to see it, ‘unless good cause to the contrary is shewn’ (per Jessel MR in Quilter v Heatly at p. 48), or ‘unless there is some sufficient ground for refusing production’ (ibid per Lindley LJ at p. 50), or ‘unless he can shew good cause why he should not’ produce it (ibid per Bowen LJ at p. 51).

33. Nevertheless, it is clear from the rules that any order for production for inspection under O.24 r.11 is expressly ‘subject to rule 13(1)’ and that latter rule plainly places, on an applicant for an order for production, a burden to demonstrate to the court that ‘the order is necessary either for disposing fairly of the cause or matter or for saving costs’.

34. In Dynamic Way, Godfrey VP expressed the position thus (at p. 142B-D):

‘We are concerned here with a document referred to in an affirmation, that is to say, the list of purchase orders mentioned in para 36. Although, prima facie, the party against whom it was sought to be used had a right to inspect this document and take copies of it, the court will not order production of the document for inspection unless the court is of the opinion that such an order is necessary either ‘for disposing fairly of the cause or matter or for saving costs’; see O 24 r 13 of the Rules of the High Court.’

35. There are thus two separate stages to be considered, although in practice these will usually be examined together. First, the party who has referred to the document in a pleading or affidavit bears the burden of showing good cause why an order for production should not be made. As a matter of practicality, at that stage, the fact of reference to a document in a pleading or affidavit will make it difficult for the referring party to contend that the document does not exist and it may also make it difficult for him to contend that it is not relevant. However, that is not the end of the inquiry as there is not then a presumptive rule in favour of an order for production and the referring party may be able to show, for example, that the document is privileged from production. In any event, under O.24 r.13 there remains, secondly, and independent of the first stage, a burden on the applicant for an order for production to show the court that the order is necessary either for disposing fairly of the cause or matter or for saving costs.

[…]

37. The plaintiff’s appeal proceeds on the footing that it was impermissible for the Judge, once he had accepted that the insurance policy was relevant to the defendant’s application to expand the confidentiality club, to conduct any evaluation of the degree of relevance or importance of the document to that matter.

38. I do not accept the validity of that premise for a number of reasons.

39. It is clear that there is no rigid, inflexible rule that production of a document referred to in a pleading or affidavit will always be ordered. On the contrary, the underlying rationale of O.24 r.10 and the theme in the cases both reflect a general rule and, as such, one to which there may be exceptions. That there may be exceptions to the general rule is accepted by the plaintiff itself, albeit that it contends the exceptions are limited to two classes of situation only, viz. irrelevance and privilege.

40.  As I have already noted, the rule providing for an order for production (O.24 r.11)  is expressly subject to O.24 r.13 which requires the court to consider the necessity of an order for production in terms of the fair disposal of the cause or matter or the saving of costs.  That inquiry necessarily imports an evaluation of the circumstances in order to determine whether an order for inspection should be made.”

34.His Lordship has also endorsed the following approaches adopted by the first instance Judge below[5]:

“21. The Judge accepted that where a document is referred to in an affidavit in support of an application, the court will ordinarily order production because the purpose of requiring production is to give the opposite party the same advantage as if the document had been fully set out: see Matthews & Malek, Disclosure (4^th Ed.)  at §§9.04-9.05.

22. He also considered that it was a theme running through many of the cases cited to him, including Quilter v Heatly (1883)  23 Ch D 42, Zida Technologies Ltd v Tiga Technologies Ltd [2001] 3 HKLRD 698 and Rubin v Expandable Ltd [2008] 1 WLR 1099, that:

‘… for practical purposes, a court is likely to take the view that absent any special factors, where a document has been referred to, it would generally be appropriate to regard its production as being so necessary as being in the interests of fairness and equality of information.’ ”

35.Although his Lordship’s focus was, in the above authority, on documents referred to in pleadings and affidavit only, I see no reason why the same principles should not be applicable to documents referred to in witness statements.  In this regard, it should be noted that at the time of the old authorities such as Quilter v Heatly (1883)  23 Ch D 42, the relevant rule equivalent to our Order 24 rule 10 did not refer to “witness statement” at all.  However, “witness statement” has since then been added in the said rule.

36.I venture to reiterate also that the criteria of an application made under Order 24 rule 7 of the RHC are not the same as those required under Order 24 rule 10.  It is trite that the court has no jurisdiction to make an order under Order 24 rule 7 for the production of documents unless, among other things, there is sufficient evidence to show that the subject document is in the possession, custody or power of the respondent of the application.  However, there is no such prerequisite in an application made under Order 24 rule 10, and whether the document is in the possession, custody or power of the respondent is just one of the matters to be taken into account.  In this regard, reference should be made to what Nourse LJ said in Rafidain Bank v Agom Universal Sugar Trading Co. Ltd & Another [1987] 1 WLR 1606.  In that case, having emphasised the lack of wordings of “possession, custody or power” in Order 24 rule 10(1), his Lordship expressed the following view at 1610G – 1611C:

“Looking at those provisions aside from authority, in particular at the contrast in wording between rule 10(1)  on the one hand and rules 11(2)  and (3)  on the other, I find it impossible to hold that rule 10(1)  applies only to documents which are in the possession, custody or power of the party concerned. It seems to me, both as a matter of construction and as one of common sense, that the omission of such a requirement is deliberate. The party who refers to the documents does so by choice, usually because they are either an essential part of his cause of action or defence or of significant probative value to him. Neither of those functions presupposes that they will be in his possession, custody or power. As Lindley L.J. observed in Quitter v. Heatly (1883)  23 Ch.D. 42, 50, a case to which I will refer again later, the material provisions were evidently intended to give the other party the same advantage as if the documents referred to had been fully set out in the pleadings. Why should that advantage be automatically denied to him because the documents are not in the possession, custody or power of the party who refers to them? Moreover, under rule 11(1)  the court is not bound to make an order for production. It has a discretion to do so or not as it sees fit. The authorities establish that an order will not be made if good cause to the contrary is shown. Doubtless the absence of possession, custody or power will sometimes amount to a good cause. But why should it invariably do so? Suppose a case where there was a technical absence of possession, custody or power but nevertheless evidence that the third party who had possession of the document would very likely make it available if only he was asked to do so. I can see no reason for thinking that it was intended that the court should be powerless to make an order whose practical effect would be to require the request to be made to the third party.”

37.With the above in mind, I hold that the plaintiff should be ordered to bear the 4^th defendant’s costs of the Summons for the following reasons.

38.Firstly, I am of the view that it was entirely proper for the 4^th defendant to ask for the production of the Requested Documents in the first place, as it is undisputed that the Requested Documents were referred to in the various witness statements filed by the plaintiff.  As established by authorities, the 4^th defendant is prima facie entitled to such documents by reason of Order 24 rule 10 of the RHC.  Furthermore, given those documents were earlier statements made by the witnesses concerned on the Scheme, it must be open to the 4^th defendant to have sight of them as a matter of fairness.  It is not open to the plaintiff to say that it can be assumed that the relevant parts have already been set out in the witness statements filed herein.  The disclosure of the Requested Documents must be relevant and necessary for the fair disposal of the action.

39.The plaintiff argued that since the Statements to Police “solely relate to credit”, the 4^th defendant’s application for discovery would not be allowed.  With greatest respect, such an argument is misconceived, and had been made upon misunderstanding of the law.  While it is of course trite that specific discovery is not allowed for the sole purpose of discrediting a party or his witness, this principle is not engaged if the document concerned is relevant to the issue of the case (other than on the credibility of the witness)[6]. Here, as aforesaid, the Statements to Police must be relevant to the issue between the plaintiff and the 4^th defendant.

40.Secondly, it was reasonable for the 4^th defendant to take out the Summons on 30 April 2025. 

41.Since the receipt of the request from the 4^th defendant’s solicitors on 30 December 2024, the only substantive replies by the plaintiff’s solicitors before the taking out of the Summons were given by way of letters dated 7 January 2025 and 28 March 2025 respectively.

42.In the letter dated 7 January 2025, the plaintiff’s solicitors alleged that it is not relevant nor necessary for the fair disposal of the matter in issue for the Statements to Police to be disclosed.  I have already explained why I disagree with such a stance. 

43.The plaintiff’s solicitors also stated that the plaintiff has never seen nor had in his possession any Statements to Police.  I am of the view that this is not an adequate answer in the circumstances of the present case, given it should have been apparent to the plaintiff’s solicitors that the basis of the 4^th defendant’s request was that the documents concerned were referred to in various witness statements filed on behalf of the plaintiff on 5 June 2023.  Hence, the relevant rule should be Order 24 rule 10 of the RHC.  Focusing on whether the Requested Documents were in the plaintiff’s possession, custody or power, as if a negative answer would bring an end to the 4^th defendant’s request, is a wrong approach.

44.In the letter dated 28 March 2025, the plaintiff’s solicitors stated that the Police had rejected the plaintiff’s request for documents. 

45.In my view, it was not a sufficient answer either, because the plaintiff’s solicitors simply failed to explain why they could and did not ask the 5^th defendant, the 6^th defendant as well as Mr Li Wing Cheung directly for the documents.  This is particularly when all of them had in their witness statements made it clear that they were willing to provide documentary evidence and materials (see the relevant excerpts quoted in [3] above).

46.Insofar as it is the plaintiff’s case that his solicitors had asked the 5^th defendant, the 6^th defendant and Mr Li Wing Cheung before 30 April 2025 for the documents (even if that was the case – which is doubtful, see the next paragraph)  but in vain, he had himself to blame for not instructing his solicitors to make this clear to the 4^th defendant’s solicitors forthwith, but to wait until after the 4^th defendant’s taking out of the Summons.

47.I have some doubts as to whether the plaintiff had indeed approached the 5^th defendant, the 6^th defendant and Mr Li Wing Cheung before 30 April 2025 for the documents, because, if that was the case, there was no reason why the plaintiff’s solicitors would choose to keep silent on this matter all the way until 9 May 2025.  This is inconsistent with the style of the plaintiff’s solicitors in the handling of this matter.  In my view, the plaintiff’s solicitors would have emphasized this in their letter dated 28 March 2025 when they referred to their effort in getting the documents from the Police.  Even if for some reasons they had omitted to do so at the time, it is quite unlikely that they would have forgotten to mention about this in their letter dated 6 May 2025, when they were specifically setting out their stance that the plaintiff had “exhausted all means” to get the documents.

48.In this regard, I have not lost sight of the statement signed by Mr Li Wing Cheung dated 26 May 2025 (which is not a sworn/affirmed document), in which he stated that the plaintiff had contacted him repeatedly since January 2025 for the purpose of getting his Statement to Police, and that he had rejected the plaintiff’s requests.  However, if the plaintiff had indeed made repeated requests, I wonder why the plaintiff’s solicitors did not mention about it at all before 9 May 2025.

49.In any event, even if that is true, as aforesaid, the 4^th defendant should not be blamed for insisting on the discovery if the plaintiff chose not to inform him about such efforts earlier.

50.Thirdly, I do not agree with the plaintiff that the 4^th defendant’s request for the Statements to Police was made for the purpose of harassing and oppressing the plaintiff as well as wasting his costs.  As aforesaid, the 4^th defendant is clearly entitled to such documents.

51.Fourthly, it was plainly unreasonable on the part of the plaintiff not to provide the 4^th defendant with the plaintiff’s Report to Police upon the request made on 5 March 2025.

52.The plaintiff argued that the 4^th defendant had failed to provide any evidence which shows that the plaintiff had ever refused to accede to the request.  He even stated in paragraph 13 of his 12^th Affirmation filed on 9 May 2025 that he was puzzling when he found that the 4^th defendant had applied for discovery of his Report to Police by the Summons, because “[he] did not have an issue with furnishing it and have instructed [his solicitors] to provide it to [the 4^th defendant’s solicitors]”.

53.I do not understand what other evidence could the 4^th defendant provide.  Neither do I understand why the plaintiff was puzzled.  Action clearly speaks louder than words.  The objective fact is that the plaintiff’s solicitors had not provided the 4^th defendant’s solicitors with the plaintiff’s Report to Police as requested, until after the service of the Summons.  Neither did the plaintiff’s solicitors make it clear before 30 April 2025 that they were minded to disclose such a document.  In my view, any reasonable bystander who had knowledge of the content of the correspondence between the parties would have, by the time of the Summons, come to the conclusion that the plaintiff was not going to accede to the 4^th defendant’s request.

54.I should also make it clear that the Court does not welcome such kind of “game of words”.  To say that “I have never said ‘No’ to your request and therefore you should have known that I am intending to say ‘Yes’” is an approach which legal professionals should not adopt.   It is a waste of time and costs of all parties.  To take this case as an example, if the plaintiff was always minded to provide the 4^th defendant with his Report to Police, why didn’t he make that clear as early as possible?  I regret to say that this kind of approach would only cause delay to the matter and should not have any place in our system. 

55.Coming back to the plaintiff’s argument, if evidence is really required, one is only required to refer to the letter of the plaintiff’s solicitors dated 28 March 2025, in which they stated that:

“[…] We wrote to the Police again requesting them to provide the police reports and/or statements that you mentioned in your said letter dated 5 March 2025, however, the Police rejected our request.”

This clearly gives others an impression that the plaintiff was unable to disclose the document by reason of the police’s refusal.

56.The plaintiff then relied on the 7-day period allowed by the 4^th defendant’s solicitors in their letter dated 24 April 2025[7], and submitted that:

“[…] Insofar as D4 attempted to justify the application by referring to an unless order due to expire at 4 pm on 30 April 2025, eclipsing the 7-day window set by D4 himself, P submits that there is simply no reason for calling upon P to bear the consequence of a confusing and problematic timeline of D4’s own making. Nowhere in the [4^th defendant’s solicitors’] letter dated 24 April 2025 indicated the said unless order or its impact or any need to reply by 4 pm on 30 April 2025. To penalise P under the circumstances would be tantamount to putting a burden on P to take care of D4’s case management, which would be grossly unfair. In the premises, there was no proper basis or valid justification for a discovery application for P’s Further Police Report on 30 April 2025. […]”[8]

57.The plaintiff further argued that:

“Delivery of P’s Further Police Report at any time on or before 1 May 2025 must have been well within the anticipation of anyone in P’s and D4’s position.”[9]

58.It should be pointed out right away that the plaintiff’s argument that he had complied with the 4^th defendant’s request made on 24 April 2025 by sending the plaintiff’s Report to Police “within the 7-day window” is misconceived, for the said window was only applicable to the 5^th defendant’s and the 6^th defendant’s respective Statements to Police[10].

59.In any event, the plaintiff’s solicitors, as legal practitioners who have been representing the plaintiff since 10 July 2023, cannot dispute that:

(1)  They were aware of the Unless Order and knew that the 4^th defendant must take out the Summons by 4pm on 30 April 2025 if he was serious about his request for discovery of the Requested Documents;

(2)  It would be a waste of costs to proceed with an application for discovery if the other side has provided (or at least has agreed to provide for)  discovery voluntarily without any court order.

60.Given the above, even if the 7-day window was applicable to the plaintiff’s Report to Police (which the plaintiff’s solicitors and counsel assumed to be the case), any reasonable and sensible professional in the position of the plaintiff’s solicitors would have no difficulty, upon perusal of the letter of the 4^th defendant’s solicitors dated 24 April 2025, in gathering that the deadline of the plaintiff’s reply cannot be beyond 30 April 2025, and the imposition of a deadline of “7 days” (which would bring the deadline to 1 May 2025 (or arguably 2 May 2025 given 1 May 2025 is a public holiday))  must be a mistake.  To take advantage of an apparent mistake on the part of the 4^th defendant’s solicitors in such circumstances is totally unhelpful, to say the least, and this Court would not allow this to happen.  I should also reiterate that, by saying that the plaintiff should have known that the 4^th defendant was obliged by the Unless Order to take action no later than 30 April 2025 and that as a result the imposition of a deadline of 1 May 2025 must be a mistake, is not “putting a burden on the plaintiff to take care of the 4^th defendant’s case management”[11] at all.  All I am saying is that the plaintiff could and should well anticipate that the 4^th defendant would and could not wait until after 30 April 2025 to take out an application for discovery.  It was therefore up to the plaintiff to take prompt action, if so advised, before the 4^th defendant came to court for an order.  If the plaintiff decided to wait beyond the time of expiry of the Unless Order, and as a result had to deal with the Summons, he has to bear the consequence and cannot blame the 4^th defendant for imposing the 1 May 2025 deadline. 

61.Moreover, the plaintiff has not explained (nor did his solicitors do so)  why it was decided to leave the positive reply to the 4^th defendant to the last minute.  One should not lose sight of the fact that it would not take long to send the document requested with a simple covering letter to the 4^th defendant’s solicitors.  There was no reason why (and none was suggested)  the matter could not be attended to promptly.  While the plaintiff has in his 12^th affirmation stated that he wanted to move the case expeditiously, as I see it, he was just paying lip service. 

62.His counsel further suggested that the plaintiff had, out of his good faith for the purpose of saving time and costs, furnished the 4^th defendant with the plaintiff’s Report to Police “within the requested timeframe”.  I do not accept this submission.  If the plaintiff was really trying to save time and costs, he should have provided the 4^th defendant with the document as soon as possible, given it is his alleged stance that he has never disagreed to do so.

63.Fifthly, the plaintiff alleged that the provision of his Report to Police had nothing to do with the 4^th defendant’s taking out of the Summons.  The timing of the relevant events is such that it is difficult for an objective bystander to accept such an allegation.  In any event, whether the plaintiff were going to disclose the document anyway irrespective of the service of the Summons is neither here nor there, since such an intention had never been communicated to the 4^th defendant before 30 April 2025.  In my view, in the circumstances of the case, a much more important factor which the Court should consider is whether it was reasonable for the 4^th defendant to take out the Summons in the afternoon on 30 April 2025, in light of the plaintiff’s various responses.  The answer must be “yes”.

64.Sixthly, the plaintiff’s argument that the evidence against the 4^th defendant in this action is overwhelming is not understood.  So long as the action is still pending, the plaintiff would be subject to the same obligation of discovery, no matter whether his case is strong or weak.

65.Seventhly, having considered the whole circumstances of the present case, I am of the view that the 4^th defendant’s withdrawal of the Summons should not be regarded as his acknowledgement of defeat or likely defeat in the discovery application.  The withdrawal was simply caused by the fact that the 4^th defendant had been able to achieve his purpose by other means.

66.Looking at all the matters in the round, I am of the view that the Court should exercise its discretion on costs in favour of the 4^th defendant for it is just to do so.

ORDER

67.By reasons of the aforesaid, I order the plaintiff to bear the 4^th defendant’s costs of the Summons, and the 4^th defendant’s own costs shall be taxed in accordance with Legal Aid Regulations.

COSTS

68.I make a costs order nisi that the plaintiff shall bear the 4^th defendant’s costs of argument on the costs of the Summons. 

69.The 4^th defendant’s costs of the Summons (as well as the costs of the arguments thereon)  shall be summarily assessed in lieu of taxation.  Unless any application for variation of the aforesaid costs order nisi is made within time, the 4^th defendant shall lodge and serve his statement of costs within 14 days after the expiry of the 14-day period referred to in the paragraph below.  The plaintiff shall lodge and serve his statement of objection within 7 days thereafter.  Summary assessment of the aforesaid costs will be conducted on paper (no matter whether any statement of objection is lodged by the plaintiff within time)  thereafter. The costs assessed shall be paid by the plaintiff within 14 days after assessment.

70.The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper)  within 14 days hereof.

Mr Mike Yeung, instructed by Hugo Leung & Lawyers, for the plaintiff

Tony Kan & Co. for the 4^th defendant