Yip Lai Fong and Another v. Sin Tung Hing and Others

HCA 1282/2003

[2026] HKCFI 578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1282 OF 2003

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D E C I S I O N

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Introduction

1.Before the Pre-trial review hearing for HCA 1282/2003 (“the 2003 Action”) and HCA 2256/2006 (“the 2006 Action”) on 3 December 2025, Ms Yip and Mr Wu (collectively “Ps”) took out two summonses returnable on 3 December 2025. The 13-day trial of the 2003 Action and the 2006 Action will commence on 2 March 2026.

2.Ps first took out a summons on 17 November 2025 (“the Expert Evidence Summons”) for their application for leave to adduce expert evidence by way of a draft expert report of Professor Lin Feng annexed thereto (“the Expert Report”).

3.The other summons was taken out 26 November 2025 (“the Relief Summons”) for relief from the sanction imposed by the unless order of Master Ho dated 25 April 2023 (“the Unless Order”).

4.The Unless Order is in the following terms:

“… unless by 4:00 p.m. on 9^th May 2023, the plaintiffs do take out application for expert directions or submit to Court a Consent Summons setting out all the relevant expert directions for approval by the Court, the Plaintiffs shall be debarred from adducing expert evidence at the trial. The expert issues to be identified must be relevant and necessary to the pleaded case of the parties”.

5.The Pre-trial review hearing would not serve any purpose without my resolution of the two Summonses. It was obviously impossible for this court to dispose of the two Summonses with submissions from both sides and to conduct the pre-trial review immediately afterwards within the 30 minutes allowed for the Pre-trial review hearing. The Summonses effectively hijacked the Pre-trial review hearing. In the circumstances, I could only adjourn the Pre-trial review hearing pending the paper disposal of the two Summonses.

6.Parties have subsequently filed their written submissions relating to the Summonses pursuant to my directions.

Discussion

7.I should first dispose of the Relief Summons. Without the relief sought, Ps are simply debarred from adducing the Expert Report pursuant to the Unless Order.

8.There is no dispute about the general principles regarding this application. In Mutual Brilliant Limited v Shin Ho Cable (Holdings) Company Ltd and Anor. [2024] HKCA 519 (§63), Au JA cited with approval the following factors and circumstances to be taken into account in the determination of whether relief from sanction should be granted set out in Hong Kong Civil Procedure 2024, para 2/5:

“The Court shall consider all the circumstances including:

(a) the interests of the administration of justice;

(b) whether the application for relief has been promptly made;

(c) whether the failure to comply was intentional;

(d) whether there is a good explanation for the failure to comply;

(e) the extent to which the party in default has complied with other rules and court orders;

(f) whether the failure to comply was caused by the party in default or his legal representative;

(g) in the case where the party in default is not legally represented, whether he was unaware of the rule or court order, or if he was aware of it, whether he was able to comply with it without legal assistance;

(h) whether the trial date or the likely trial date can still be met if relief is granted;

(i) the effect which the failure to comply had on each party, and

(j) the effect which the granting of relief would have on each party.”

9.Of course, this is not meant to be an exhaustive list but it serves to be a helpful guidance in the present case.

10.Now Ps seek to adduce expert evidence despite the sanction on the following three questions:

(1)  What is the legal effect of the judgment handed down by the Supreme People’s Court of the People’s Republic of China dated 9 July 2019 (“the PRC Judgment”) under PRC law?

(2)  Regarding the PRC Judgment, what are the conditions and procedures of invoking the trial supervision to procure a retrial in the PRC?

(3)  What is the likelihood of the PRC Judgment being varied, set aside or a retrial being ordered under the trial supervision system, given that the system has not been invoked since its delivery of the PRC Judgment on 9 July 2019?

11.The PRC Judgment relates to a civil action tried in the PRC (“the PRC Action”). The present action was once stayed by an order dated 11 November 2008 pending the end of the re-trial of the PRC Action, which was described as a similar action in the order (“the Stay Order”).

12.In their pleaded case, Ps seek to rely on the effect of the PRC Judgment and to invoke the doctrine of res judicata. P further avers that it is an abuse of process for Mr Sin (“D1”) and Mr Yau (“D2”) (collectively “Ds”) to re-litigate on the validity of the shares transfer in question (§§35-40 of the Amended Statement of Claim).

13.In their Amended Defence and Counterclaim (§§15.7-15.11), Ds admit the content of the Stay Order. They aver that any argument advanced by Ps in the PRC Action is irrelevant to the issues in these proceedings. They further aver that the PRC Judgment is not binding because the PRC Supreme Court failed to resolve an important and fundamental issue. Then they conclude that there is no application of the doctrine of res judicata and it is not an abuse of process of Ds.

14.Thus, whether the doctrine of res judicata can be relied on by Ps is at issue. In the Joint Statement of List of Issues and Undisputed Facts dated 26 November 2025, indeed the first issue is whether, in light of the PRC Judgement, Ds are debarred from taking the same position in the present proceedings by reason of res judicata and whether it is an abuse of process for Ds to do so.

15.To be operative as a res judicata, the PRC Judgment has to be final and conclusive: Wu Wei v Liu Yi Ping (unreported, HCA1452/2004, 30.1.2009) per DHCJ Lisa Wong (as she then was) at §95.

16.The Expert Report is prima facie necessary to shed light on the finality and conclusiveness of the PRC Judgment and hence the availability of res judicata to Ps.

17.I understand that Ms Lin, together with Mr Yu, for Ds, now argues that the issues resolved in the PRC Action actually have little bearing on those issues in these proceedings.

18.Despite this, it is at least arguable that whether the PRC Judgment is final and conclusive and its effect are final and conclusive are relevant to for Ps’ contention and their pleaded case.

19.The lateness of this application is inexcusable. The deadline in the Unless Order is 9 May 2023. The present application was only made more than 2.5 years later and the trial is less than 4 months away.

20.Ps try to make explanation for the delay by reference to the history of this litigation. They say that in October 2021, the parties intended to file a single joint expert report on quantum only. Ds only dispute the effect of the PRC Judgment in the Amended Defence and Counterclaim on 12 June 2023.

21.This is merely a lame excuse. Their plea based on the PRC Judgment was made by way of amendments on 7 September 2021. Even if they could not expect the challenge to their plea before Ds amended their pleadings to make denials, as soon as their position is clear, Ps should apply to seek relief from sanction forthwith.

22.Ps explain that there were without prejudice negotiations among the parties which yielded some fruits. Nonetheless, the delay is indeed indefensible and gives this court a sound basis to refuse Ps’ application.

23.However, the following matters are significant. First, Ms Lin confirms that Ds do not intend to file any expert evidence in any event and they only require Professor Lin Feng to be cross-examined. The defence is also ready to deal with his expert evidence. Further, she agrees with Mr Fong, appearing for Ps, that the trial can still be completed within the scheduled time even if the Expert Report is allowed to be adduced. This is due to the incapability of Mr Wu to attend the trial and the settlement between Ps and Many Profit Investments Limited, the 3^rd defendant herein.

24.Given the relevance of the Expert Report, it is in the interests of the administration of justice that it should be admitted despite the unjustifiable delay. I agree with Mr Fong that it would be disproportionate if the Expert Report is disallowed and Ps are prevented from proving their plea with relevant evidence.

Conclusion and orders

25.For the reasons given, not without much reluctance, I grant Ps’ application by the Relief Summons. It follows that the Expert Evidence Summons should be granted as well save that there be no leave for Ds to file and serve their expert report and there be no joint statement by the parties’ respective experts.

26.Mr Fong submits that costs of these two Summonses should be in the cause, referring to the correspondence exchanged between the parties before the applications were made.

27.I cannot agree with his submissions. Ps could not expect that this court would certainly exercise the discretion in their favour in spite of the lengthy delay. After all, Ps are asking the indulgence of this court and seek relief from sanction in the Unless Order. They should not have taken out the two Summonses in the last minutes and made them returnable on the Pre-trial Review hearing only.

28.To mark my disapproval of the serious lateness of these applications, which inevitably led to the adjournment of the Pre-trial review hearing, I make an order nisi that Ps do pay Ds costs of and occasioned by the two Summonses, to be summarily assessed by this court at the end of the trial if not agreed.

Mr Enoch Fong instructed by Messrs So, Lung & Associates for the 1^st and 2^nd Plaintiffs

Ms Chantel Lin & Mr Axis Yu instructed by Messrs Paul W. Tse for the 1^st and 2^nd Defendants