Carmon Reestrutura-engenharia E Serviços Técnicos Especiais (Su) Limitada v. Carmon Restrutura Ltd and Another

HCA 1812/2022

[2026] HKCFI 620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1812 OF 2022

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DECISION

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A.  Introduction

1.The 9-day trial of this action has been fixed for a speedy trial on 29 April 2025 by Deputy High Court Judge Kenneth Wong. The first day of trial is scheduled for today, ie Monday, 26 January 2026.

2.A Pre-trial Review (“PTR”) took place before DHCJ Gary CC Lam on 14 October 2026.

3.The defendants (“Ds”) on Wednesday, 21 January 2026 filed a summons under RHC O.1B, rr.1 and 2 and inherent jurisdiction (“Ds Summons”) for (1) leave to Ds to file and serve the draft 3^rd List of Documents (“Ds’ Draft 3^rd LOD”); (2) Ds be granted leave to adduce and rely on the documents in Part 1, Schedule 1 of Ds Draft 3^rd LOD; and (3) costs to the Plaintiff (“P”) to be taxed if not agreed.

4.Ds’ Summons is supported by the 10^th Affidavit of the 2^nd Defendant (“10^th Cuenda”).

5.Ds’ Summons has been fixed to hear before me at 10:00 am today, prior to the commencement of the trial itself. 15 minutes was estimated as the time needed for dealing with the Summons by Ds’ solicitors.

6.10^th Cuenda consisted of 6 pages and 22 paragraphs. Ds now wish to make discovery of a total of 187 pages of new documents. Clearly 15 minutes will not be sufficient to dispose of the matter and the estimate given by D’s solicitors was grossly inaccurate.

7.No skeleton submissions have been filed or lodged by Ds’ counsel, presumably they did not think one was necessary because they estimated that the entire application would take 15 minutes only.

8.With respect, not only that was a gross and unrealistic underestimation, it was clearly designed to circumvent the requirement under PD5.4 that written skeleton argument would be required for any hearing more than 30 minutes before a judge sitting in chambers. I find such conduct unreasonable and unacceptable.

B.  P’s objections

9.P’s counsel Mr Norman Hui, appearing with Ms Natalie So, opposed to Ds’ Summons on behalf of their client both as a matter of procedure and substance.

10.As a matter of procedure, they say that Ds’ Summons is an obvious and tactically timed ambush of P.

11.I agree with them.

12.First, Ds’ Summons was issued on Wednesday, 21 January 2026 (at 3:46 pm according to the Registry’s record) together with the supporting affirmation of Ds’ solicitors (which exhibited 10^th Cuenda). This was precisely 2 clear days before trial, the minimum amount of time required for a summons to be heard without leave of the court for abridging of time. No explanation was given as to why it was issued at such late stage.

13.Second, although Ds’ counsel had indicted to the court at the PTR hearing which took place before DHCJ Gary CC Lam on 14 October 2025 that Ds might “possibly filing a short witness statement”, nothing was mentioned that they would be filing an application to discover a substantial volume of new documents before the trial commenced. As the court had made it clear to Ds’ counsel at the time, until there is a summons and supporting affirmation before the court (for the purpose of a possible short supplemental witness statement at the time), the court would not be prepared to deal with any application. The learned deputy judge specifically mentioned that the court is “always skeptical of any late application”. Counsel for P also specifically stated for the record at that hearing that that there should not be any attempt for making any last-minute applications.

14.Although the present application is dressed up as a discovery of documents application, in essence, D2 is trying to put in a “supplemental witness statement” in the form of 10^th Cuenda in order to introduce those documents and bolster Ds’ defence. In my view, this is a “back door” way of trying to do something that they had been specifically warned by the court not to do at the PTR. The court do not and should not condone to this kind of litigation conduct.

15.As to the substance of the application, P opposes the entire contents of Ds’ Summons.

16.First, §17 of 10^th Cuenda claims that the documents do not cause prejudice to P or delay to trial since they do not raise new issues or should have been disclosed by P. Mr Brown, appearing with Mr Jeremy Yau, for Ds repeated the above claims in his oral submissions before the court this morning.

17.I strongly disagree with such statement made by D2 and his counsel.

18.As submitted by Mr Hui, not only is this plainly untrue, but this is besides the point as P has had no time to consider, investigate and potentially respond to these documents. P does not (and has no reason to) accept what Ds say on face value as a matter of common sense, particularly given how Ds (i.e. D2 / Cuenda) have been conducting this litigation so far. If the court allows Ds’ Summons, in my view, it will inevitably cause an adjournment to the trial as P will need time to study those documents and to respond to them, including filing supplemental witness statements and/or making further discovery, and possibly amending their pleadings also. Under the CJR, this is not going to happen as the dates reserved for the trial are “milestone dates” which cannot be moved unless there are special circumstances. Late discovery of documents by the defendants in the case is not one of them.

19.More importantly, as submitted by P, I agree that the explanations provided by D2 at §18 of 10^th Cuenda are simply untenable:

(1)  First, Ds claim that certain documents recently came to light following a retrieval of archived electronic data. This is no explanation as to why the documents could not have been retrieved earlier. There is no suggestion that there was any malfunction of any electronic devices like computers or servers which made earlier retrieval impossible.

(2)  Second, Ds claim the relevance was not appreciated earlier. I agree with P that this is incredible: Ds have always been legally represented, and the nominee issue has always been at the forefront of this action from the outset. Given the fact that the first interlocutory injunction order was made by the court in December 2022 and the statement of claim was filed and served on them was in March 2023, Ds have more than 3 years to discover any relevant documents in this case and to consider what relevant documents should be discovered for the purpose of the trial. In any event, as the speedy trial order was made by the court back in April 2025, there is simply no reason why the discovery of those new documents could not have been made earlier.

(3)  Third, Ds claim this is merely complying with ongoing discovery obligations. In my view, this is a very lame excuse. With respect, ongoing obligations do not mean that last minute discovery, which acts as an ambush to the opponent and to take the court by surprise, should be allowed. In my judgment, the discovery should have been done earlier as none of the new documents Ds now seek to discover (save for pp.184-185) came about post-PTR. All those documents (save for those 2 pages) were available months if not years before.

20.I agree with Mr Hui that the unexplained delay in itself provides sufficient reason to dismiss Ds’ Summons, because of the significant prejudice that has been occasioned to P, namely, for distracting P’s legal team from trial preparation at the eleventh hour.

21.In any event I find the new documents are highly questionable.

22.10^th Cuenda explains there are 4 categories of documents that seek to be adduced, namely, (i) WhatsApp Messages; (ii) Emails; (iii) PowerPoints; and (iv) Angolan Court Documents.

(i)  WhatsApp Messages

23.I agree with Mr Hui that the provenance of these Whatsapp Messages is highly disputed:

(1)  They are not in sequence and are not presented as “standard” WhatsApp messages (e.g. in screenshot format – see [E3/55/685- 690]). There is no clarity as to whether these purported records show the complete / properly constituted conversation(s) between Cuenda and Mr Christopher Hartung – or whether the records may have been edited.

(2)  Certain messages appear to be in Portuguese (pp.1 – 20).

(3)  Notably pp. 21-96 of “AJC-27” onward are unexplained documents. It is not clear how they relate to the WhatsApp Messages.

(ii)  Emails

24.Again, their relevance is questionable, as Ds are trying to assert a negative inference on the basis there is an absence of references to “nomineeship”. I agree with P that the point goes nowhere as there are other emails (already disclosed) where P and D1’s relationship is explained. In my view, it is not helpful to the court to allow a party to provide self-serving documents to allegedly try to prove something they say do not exist.

(iii)  PowerPoints

25.Again, the relevance is questionable. There is also no explanation as to how such PowerPoints came into being and/or their purpose. In any event, part of it (pp. 137-140 of Exhibit “AJC-27”) is not even translated.

(iv)  Angolan Court Documents

26.I agree with Mr Hui that the relevance is questionable especially as these concern entirely different legal systems, different proceedings, and different allegations. It is also noted that the first half of these documents were translated on 23 June 2025 (see p.141 of Exhibit “AJC-27”) but inexplicably not produced by Ds until the last minute. The second half of the new documents are still in Portuguese.

27.In my judgment, the sloppy way in which Ds have tried to introduce over 180 pages of new documents at the eleventh hour is totally unacceptable. It is unfair for P and its witnesses to have to suddenly deal with completely new matters without any forewarning, right before trial is to start.

C.  Late applications for discovery

28.I would like to emphasis that, in the post-CJR era, late applications to amend or to introduce new evidence has a fairly high threshold to pass: see Wise Union Industries Limited v Hong Kong Science and Technology Parks Corporation (unrep., HCAL 12/2009, 21 September 2009) per A Cheung J (as the CJ then was) at §2. At §9, the learned judge also held:

“I do not accept that in this new era, the fact that the innocent party can ask for an adjournment (even if one that was to be paid by the other side) would mean that there was no prejudice. In my view, at least nowadays, an adjournment itself is a prejudice. Equally, the fact that a party, not wanting to lose a hearing date, refrains from asking for an adjournment, does not mean that there was no prejudice. The unenviable position that such a party finds himself in is itself a prejudice.” (Emphasis added).

29.I cannot agree more with the above statement.

D.  Ruling & Order of the Court

30.In the aforestated premises, I find there is absolutely no merits contained in Ds’ last minute application and it amounts to an abuse of process. Ds’ Summons is hereby dismissed with costs on an indemnity basis, with certificate for two counsel, in favour of P. Such costs to be taxed if not agreed.

Mr Norman Hui and Ms Natalie So, instructed by Messrs CMS Hong Kong LLP for the Plaintiff

Mr Toby Brown and Mr Jeremy Yau, instructed by Messrs Gall for the 1st and 2nd Defendants