Asia-pac Group Investments Ltd v. Tanner De Witt (A Firm)

HCMP 1545/2025

[2026] HKCFI 2446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1545 OF 2025

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BETWEEN

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JUDGMENT

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Introduction

1.By originating summons dated 9 September 2025 (“OS”), Asia-Pac Group Investments Limited (the “Plaintiff”) applied for an order under section 65 of the Legal Practitioners Ordinance Cap 159 (“LPO”) and inherent jurisdiction that the Defendant Tanner De Witt (“TDW”) (1) deliver up the originals of documents in its possession in relation to its services provided to the Plaintiff in HCA 806/2006 (the “806 Action”); (2) further or alternatively, provide a copy to the Plaintiff of such documents with originals available for inspection by the Plaintiff.

2.The 806 Action was an action commenced on 11 April 2006 by Asia-Pac Infrastructure Development Ltd (“P1”), Asia-Pac Infrastructure Finance Limited (“P2”), the Plaintiff (“P3”) and Greater Beijing Region Expressways Ltd (“P4”) (collectively, the “806 Plaintiffs”) against Shearman & Sterling and its then Hong Kong resident partners (collectively, “S&S”) and Herbert Smith (“HS”) (collectively, the “806 Defendants”) in negligence, breach of contract and breach of duty.

3.On 7 June 2012, the then trustees in bankruptcy of Ho Yuk Wah David (“David Ho”) commenced HCA 971/2012 (the “971 Action”) to recover assets which they claim to belong to David Ho’s bankruptcy estate. The defendants to the 971 Action included P1 and the Plaintiff, respectively the 6^th and 5^th defendants therein. On 28 September 2020, Ng J held (the “971 Judgment”) that since 1996, David Ho has always officially owned/controlled and still owned/controlled through nominees, inter alia, P1 and the Plaintiff.

4.Chen Yung Ngai Kenneth and Dr Mei Mei Chan became the trustees in bankruptcy of David Ho (“Trustees”) on 16 January 2024 in place of the previous trustees who had commenced the 971 Action.

5.The Trustees control the Plaintiff (a BVI company), having obtained an order from the Eastern Caribbean Supreme Court on 16 December 2024 to be entered as its shareholder. Since 21 May 2025, Kenneth Chen became its sole director and the Trustees together became its shareholders.

Relevant background and chronology

6.On 12 October 2007, the 806 Plaintiffs signed the retainer letter with TDW (the “2007 retainer”).

7.On 3 August 2009, each of P2, P3 (i.e. the Plaintiff) and P4 executed a deed of assignment to assign their respective claims in the 806 Action to P1 (the “Assignments”).

8.In August 2011, on David Ho’s own petition, a bankruptcy order was granted against him.

9.On 16 May 2012, P1 obtained leave from the Court of Appeal to amend the pleadings in the 806 Action to plead and rely on the Assignments as the assignee of P2-P4’s causes of action in the 806 Action.

10.On 21 June 2012, TDW was appointed as solicitors for the defendants in the 971 Action which included the Plaintiff and P1[1].

11.On 10 April 2013, P1 was put into Creditors’ Voluntary Liquidation (“CVL”) by its directors. David Ho appointed Alan Tang of ShineWing Specialist Advisory Services Limited (“ShineWing”) as P1’s liquidator[2], the other liquidator being Anita Hou also of ShineWing (collectively, the “Liquidators”). Notice of confirmation of their appointment is dated 30 April 2013.

12.On 16 April 2013, Messrs Cheng, Yeung & Co (“CYC”) filed notice of change of solicitors to replace TDW as solicitors of P1 “on behalf of itself and as assignee” of P2-P4 in the 806 Action.

13.According to David Ho, he obtained funding from a third party to prosecute the 806 Action in January 2015.

14.On 17 March 2015, TDW again became solicitors of P1 and issued its retainer letter to P1 in the 806 Action (the “2015 retainer”). On the following day it issued notice of change of solicitors to replace CYC as solicitors of P1.

15.On 25 January 2017, Messrs ONC Lawyers (“ONC”) filed notice of change of solicitors to replace TDW as solicitors of 806 Plaintiffs.

16.In the 971 Judgment dated 28 September 2020, Ng J found David Ho to be the beneficial owner and controller of, inter alia, P1 and the Plaintiff[3] since 1996.

17.The validity of the Assignments was tried as a Preliminary Issue[4] in the 806 Action. In his judgment dated 18 May 2021 (“Preliminary Issue Judgment”), A Chan J held that the Assignments were champertous and void.

18.On 18 May 2023, the 806 Action was dismissed by consent.

The Assignments and their context

19.The context for the Assignments is relevant for present purposes.

20.The timeline of orders made for security for costs sought by the 806 Defendants against the 806 Plaintiffs may be summarised as follows:

(i) on 30 January 2008, Master Roy Yu ordered security for costs for S&S against the 806 Plaintiffs in the sum of $1 million;

(ii) on appeal, on 23 December 2008, Poon J (as he then was) varied the Master’s order to the effect that only P2-P4 are ordered to give security for costs in the sum of $1 million and stayed the claims of P2-P4 until provision of the security;

(iii) on 2 July 2009, Master de Souza ordered P2-P4 to provide security for costs for HS in the sum of $2 million within 21 days (i.e. on or before 23 July 2009);

(iv) following a request on 16 July 2009 by P2-P4, by consent, the deadline for compliance was extended to 20 August 2009[5];

(v) the Assignments were executed[6] during this extension period;

(vi) at the trial of the Preliminary Issue, the Court was informed by the 806 Defendants that Master de Souza’s order for security was stayed due to the Assignments[7].

21.After commenting that neither the July 2009 transactions[8] nor the Assignments have been explained as to why they came to be made, A Chan J stated (at §102):

“The circumstances, in particular the timing of these transactions … give rise to the inference that they were indeed generated to evade the payment of security for costs. That was the view taken by both DHCJ Mayo and DHCJ Wilson Chan. It is also a view to which this court is driven based on the evidence.”

22.Those views are reinforced and corroborated by David Ho’s affirmations filed on 16 August 2021 (“Ho 1^st) and 8 November 2021 (“Ho 2^nd”) in support of P1’s application by summons dated 18 May 2021 to further amend the RASOC (the “Re-amendment Summons”) inter alia, to resurrect the claims of P2-P4 in the 806 Action.

23.David Ho acknowledged devising “the scheme to consolidate all the causes of action into the hands of P1 working directly with Roger ter Haar QC from London, assisted by TDW (P1’s then solicitors)[9]”. The master plan devised was based on the House of Lords decision in Norglen to the effect that the assignment of the cause of action from a company to its individual shareholder in order to avoid payment of security would be lawful. Under the master plan, P2-P4 would assign their causes of action to P1, but if the Assignments were held to be void, they could automatically resume their causes of action as of right: Ho 1^st at §§14-15 and Ho 2^nd at §99.

24.On 9 November 2021, A Chan J disallowed the proposed amendments to reinstate the claims of P2 to P4: see [2021] HKCFI 3381.

This application

25.The Plaintiff’s solicitors, Messrs Lee, Wong & Lam (“LWL”) and TDW exchanged correspondence between 14 July 2025 and 21 August 2025 relating to the Plaintiff’s request for documents.

26.As of 21 August 2025, TDW were retrieving files from storage anticipating delivery of the same by early the following week but refusing to provide documents after April 2013. When nothing further heard for almost 3 weeks, the Plaintiff took out the OS.

27.By the time of the hearing, the issues had narrowed. For present purposes, the Plaintiff’s request covers 4 distinct periods set out in the ‘Speaking Notes[10]’ of Mr James Wood, Counsel for TDW and submissions were made on that basis.

28.Before launching into those periods, it would be convenient to set out the applicable legal principles.

Applicable legal principles

29.The Court’s jurisdiction under section 65 of the LPO to order the delivery up by a solicitor of, inter alia, documents or papers in his possession, custody or power extends to cases where no business has been done by him in the Court.

30.The Plaintiff submits[11], inter alia, that

(1) The onus is on the solicitor to establish which documents it claims the client is not entitled to: Strong Petrochemical Holdings Limited v Loeb & Loeb LLP (A Firm) [2026] HKC 5617 at §14 (1); CPC Networks Corp v McDougall Gauley LLP, 2023 SKCA 90 at §§ 34 and 37 (f).

(2) Once a client’s file is closed, it is the solicitor’s duty to list out the documents he retains belonging to the client: The Professional Conduct of Lawyers in Hong Kong, [2455]-[2480]; Bank of Nova Scotia v Imperial Developments (Canada) Limited 1987 CanL II 5358 (MB CA).

(3) The client’s entitlement to documents is described in Strong Petrochemicals in these terms:

“For documents owned by the client, there is no reason why they should not be entitled to copies. As to those which are not owned by the client, the court may wish to make an assessment of the reasonableness of the request, bearing in mind the overall approach that if the client is willing to pay and the documents speak to business that has been conducted on their behalf then unless there is a good reason why inspection should be refused it should nonetheless be ordered.”

(4) Where there is a joint retainer, the clients cannot claim privilege against each other in relation to documents generated in respect of the joint retainer: Chan King Sheen v KC Tsang & Co [2002] 3 HKC 209 at §17.

(5) A solicitor may be retained by a client under an implied contract: The Professional Conduct of Lawyers in Hong Kong, [802]. The question is an objective one and a retainer will only be implied where on an objective assessment the solicitor either appreciated or ought to have appreciated that he or she was being instructed by the client or prospective client: The Law of Solicitors’ Liabilities, 4^th Edn., §1.09.

(6) A retainer to conduct litigation is only completed when the action has been concluded or when execution has been effected: The Professional Conduct of Lawyers in Hong Kong [1954]-[2000]; Professional Conduct and Risk Management in Hong Kong at §3.143.

31.TDW’s stance[12] is that the Trustees reliance on Strong Petrochemical is misplaced because that case did not concern a joint retainer with multiple clients, nor the scenario where the solicitors had been replaced and came off the record.

32.However, no authority was cited in support nor did TDW identify any passage in Strong Petrochemical that supports its position.

33.I now turn to consider the 4 Periods.

Period 1: 12 October 2007 to 3 August 2009

34.P1-P4’s joint retainer with TDW for the 806 Action commenced on 12 October 2007. 3 August 2009 is the date of the Plaintiff’s Assignment of its cause of action to P1.

35.No dispute arises for Period 1: TDW agrees to deliver up to the Plaintiff copies of documents in the joint client file acquired during Period 1 with the originals available for inspection.

Period 2: 3 August 2009 to 16 April 2013

36.This period commenced with the Plaintiff’s Assignment of its cause of action in the 806 Action to P1, ending on 16 April 2013 with CYC’s notice of change of solicitors to replace TDW as solicitors for P1[13].

37.It is clear from the 2007 retainer that TDW were retained to conduct litigation against the 806 Defendants. The litigation was still ongoing when CYC issued its notice of change.

38.Under the standard terms and conditions incorporated by reference into the retainer, a client may terminate TDW’s appointment as solicitors at any time by giving TDW reasonable written notice. There is no evidence of any written notice.

39.The standard terms state that if TDW is on record at Court as acting for a client in any proceedings, a client’s right to terminate TDW’s engagement may be restricted as the consent of the Court may be required[14].

40.If TDW is later retained and agrees to provide further or additional services the solicitor/client relationship will be revived subject to the standard terms and any variation of them by TDW.

41.Mr Wood submitted that while of the 806 Plaintiffs P1 was the only active one after the date of the Assignments, he accepted that none of the steps to come off the record under O.67 had occurred.

42.Mr Wood referred to Reilly & Anor v O’Ceallaigh & Ors [2013] IEHC 565 for the proposition that a retainer could be implicitly terminated where the circumstances give rise to the implication.

43.In that case the relevant circumstances were that despite the plaintiffs’ requests to their solicitor to progress with the case, for 16 months nothing of substance was done. After analysing the evidence, the judge considered that the solicitor was in breach of his duty of diligence and that the plaintiffs were entitled to consider that he has by neglect implicitly terminated his retainer. So, at the behest of the client, not the solicitor, the court held that there was an implied termination of the retainer.

44.Mr Wood did not identify the ‘special circumstances’ in the present case to warrant an implied termination. The fact that TDW did not take any action is explicable because under the master plan, the Plaintiff was to remain inactive unless and until its Assignment was held to be void. In Reilly, the solicitor was obliged to take action on behalf of his client and to progress the matter on its client’s behalf. Here, there was no such obligation as the ‘inactivity’ was part of the master plan. Reilly offers no assistance to TDW given the facts of the present case.

45.As TDW never came off the record as the Plaintiff’s solicitors, TDW remained on record as solicitors for the Plaintiff.

46.The Plaintiff is therefore entitled to the documents in the joint client file acquired by TDW during Period 2.

Period 3: 16 April 2013 to 18 March 2015

47.This period commenced with CYC’s notice of change of solicitors filed on 16 April 2013, ending on 18 March 2015 when TDW filed its notice of change of solicitors to replace CYC as solicitors for P1.

48.CYC replaced TDW as solicitors for P1 (on behalf of itself and as assignee of P2-P4) in the 806 Action. It is the Plaintiffs’ case that only P1 is the subject of CYC’s notice of change.

49.That is supported by CYC’s description of themselves as “Solicitors for the 1^st Plaintiff” in the Notice itself as also on the back-sheet. They did not describe themselves as solicitors for P1 to P4, the 806 Plaintiffs. Pursuant to O.67, CYC’s notice was served on TDW as “Former Solicitors for the 1^st Plaintiff”.

50.Subsequent documents from solicitors representing HS in the 806 Action reflect this understanding:

(i) Smyth & Co[15]’s letter of 29 September 2016 was addressed to TDW “Solicitors for the Plaintiffs”, reflecting its understanding of TDW’s representation.

(ii) Smyth & Co’s letter of 3 February 2017 to ONC (the “February 2017 letter”) referred to its understanding (a) of CYC’s notice of change confirming that they had been appointed as solicitors for P1 only[16]; (b) that TDW remained as solicitors on record for P2 to P4 who remained inactive since the Assignments[17].

51.The statements described in the preceding paragraph have not been challenged.

52.Several months after the February 2017 letter, on 18 August 2017, Liu Shu (the Plaintiff’s sole director) passed a number of sole director resolutions[18] including Resolution 2 which approved and ratified with retrospective effect the engagement of CYC as solicitors to P1, also to represent and act for the Plaintiff in the 806 Action for the period from 30 April 2013 to 10 March 2015.

53.Liu Shu had been the sole director of the Plaintiff since February 2012. The one share in the Plaintiff was held by one Yu Yang. In the 971 Judgment, Ng J found that Yu Yang held the one share in the Plaintiff as David Ho’s nominee[19].

54.Liu Shu was an employee of the Beijing branch of the Asia Pacific Group companies (which included the Plaintiff) set up by David Ho[20]. She was held to be a person closely associated with David Ho by reason of her association with Yu Yang and is a nominee of David Ho: see the Decision of Au-Yeung J dated 13 January 2023 in HCB 3819/2011[21] at §§26 and 41.

55.There is no explanation of the matters that gave rise to Resolution 2. Liu Shu does not appear to have a legal background and has been found to be a nominee of David Ho. In these circumstances, I do not consider it sufficient to outweigh the natural meaning of the CYC notice of change and the matters set out in §§ 49-51 above.

56.During Period 3, TDW did not perform any work for any of the 806 Plaintiffs. It did not receive any documents, correspondence or notices from the Court although there were steps taken in the 806 Action to further amend the statement of claim said to affect the Plaintiff.

57.On 19 November 2014, Wilson Chan J dismissed P1’s Amendment Summons.

58.TDW submitted that if they were on record as solicitors for, inter alia, the Plaintiff, they would have been notified of those proceedings since the application was to make amendments to the SOC but they were not.

59.I do not see that it should be so. As assignee of the Plaintiff’s cause of action, until the same is revested in the Plaintiff, it is P1 rather than the Plaintiff which has authority to make amendments to the SOC subject only to any requisite leave.

60.Further, given the context of the Assignments and the master plan, P2-P4 were meant to be “inactive” parties until such time as the Assignments are held to be void. That explains why TDW took no steps to come off the record as solicitors for the Plaintiff not only during Period 2 but also Period 3.

61.Moreover, had TDW stopped acting for the 806 Plaintiffs and only acted for P1, it is inexplicable that ONC would state in their notice of change of solicitors of 25 January 2017 that they were taking over as solicitors for the 806 Plaintiffs.

62.While TDW has no objection to delivering up to the Plaintiff the documents (if any) in the joint client file for Period 3, the Court’s view of the matter is that it is not a matter of choice for TDW: I find that the Plaintiff is entitled to the documents in the joint client file for Period 3.

Period 4: 17 March 2015 to 25 January 2017

63.This period commenced on 17 March 2015 with the 2015 retainer, ending on 25 January 2017 when ONC filed its notice of change of solicitors to replace TDW as solicitors for all 806 Plaintiffs.

64.TDW thus became solicitors for P1 once more. In that capacity, TDW received documents from CYC for P1 in respect of the 806 Action.

65.The 2015 retainer was addressed to P1. It was necessary because TDW’s representation of P1 under the 2007 retainer ended when CYC replaced TDW as P1’s solicitors in the 806 Action. The 2015 retainer was therefore signed between TDW and P1. There is no new engagement letter between TDW and P2-P4 for whom the 2007 retainer remained in place.

66.If, as is my view, TDW never came of the record as a solicitor for the Plaintiff during Periods 2 and 3 and there is no evidence of TDW coming off the record at any time during Period 4, TDW continued to be the Plaintiff’s solicitors in Period 4.

67.Resolution 3[22] reflects that view.

68.As earlier noted, at all material times, P1 and the Plaintiff were under the control of David Ho or his nominee[23].

69.Not only is the “matter” undertaken by TDW under both retainers the same, (namely, the 806 Action) the terms of the 2007 and 2015 retainers are substantially similar (including a 15% discount of the standard rates).

70.The discernible differences are summarised in the table below:

	2007 retainer	2015 retainer
Client:	The 806 Plaintiffs	TDW’s client is P1, or the Liquidators who act without personal liability
Instructions:	David Ho, his agents/employees	Alan Tang and Anita Hou

71.By the time of the 2015 retainer, P1 was in CVL[24]. That TDW were authorised to act on instructions received from the Liquidators is hardly surprising. It should be noted that P1’s Liquidators were appointed by none other than David Ho.

72.Although the Liquidators were also described as “Client”, it was expressly provided that they act without personal liability. In other words, in reality, P1 remained the only party liable for fees incurred under the 2015 retainer.

73.I do not consider the differences between the 2007 and 2015 retainers identified above could be considered “material” by any stretch of the imagination. They do not give rise to different outcomes.

74.Given the absence of any material difference between the 2007 and 2015 retainers and the fact that the matter undertaken by TDW for the Plaintiff and P1 is identical, I have no hesitation in concluding that a joint retainer existed between the Plaintiff and P1 during Period 4.

Disposition

75.In the result, I order as follows:

(1) TDW shall within 14 days hereof deliver up to the Plaintiff copies of all documents which are in the TDW’s possession, custody, power, or control in relation to its services provided to the Plaintiff and make originals of the same available for inspection by the Plaintiff, including the following:

(i) All documents relating to payment of TDW’s legal fees in HCA 806/2006, such as bills, invoices, payment instructions, payment records and receipts;

(ii) All communications and correspondences, instructions and briefs, attendance notes in HCA 806/2006;

(iii) All other documents related to services provided by TDW to the Plaintiff which are not caught under the 2 aforesaid categories, including all advice rendered to or received on behalf of the Plaintiff.

(2) TDW shall have its reasonable costs of compliance in relation to the delivery up of the copies of the documents, such sum to be agreed between the parties. If no agreement is reached the parties shall have liberty to apply in writing for the Court to make a determination thereon.

(3) There be an order nisi that the costs of the OS be paid by TDW to the Plaintiff, be dealt with by way of gross sum assessment and directions be given should the order nisi become absolute.

Mr Chester Kwan, instructed by Messrs. Lee, Wong & Lam, for the Plaintiff

Mr James Wood, instructed by Messrs. Tanner De Witt, for the Defendant