Koo Ming Kown v. Rev. Mr. Mok Kong Ting (President of the Baptist Convention of Hong Kong) and Others

HCA 2337/2016

[2026] HKCFI 794

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

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DECISON

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1.Introduction

1.1This is the Plaintiff’s appeal against the decision of Master Kot of 16 October 2025 (“Decision”), by which the learned Master dismissed the Plaintiffs’ application for leave to issue writs of subpoena ad testificandum against five individuals (“Application”), namely (1) the 3^rd Defendant, (2) Mr Lau Man Hin (“Mr Lau”), (3) the 1^st Defendant, (4) Rev Mr Tong Eric Wing Mun (“Rev Tong”) and (5) Mr Yeung Pee Tak Peter (“Mr Yeung”).

1.2At the hearing, the Plaintiff was represented by Mr Kelvin Leung.

2.The Plaintiff’s claim

2.1The Plaintiff is an alumnus of the Hong Kong Pui Ching Primary School (“Primary School”) and the Hong Kong Pui Ching Middle School (“Middle School” and together with Primary School collectively “Schools”).  In these proceedings, the Plaintiff’s complaints are concerned with the allegedly false declarations by the 3^rd Defendant of his academic qualifications. 

2.2According to the Plaintiff’s pleaded case[1]: (1) the 1^st Defendant is the Chairman of the 4^th Defendant, (2) the 3^rd Defendant was the Supervisor of the Middle School from September 2010 until August 2017 and the Primary School from September 2010 to August 2018 and (3) the 4^th Defendant is the Sponsoring Body, as defined under the Education Ordinance Cap 279 (“EO”), of a number of educational institutions including the Schools and administers the Schools through its appointment of members of management committees as well as Supervisors and Principals of the Schools.

2.3As summarized by Cheng J in her decision dated 21 March 2022, the nub of the Plaintiff’s complaints against the 1^st and 4^th Defendants is that they failed to verify the 3^rd Defendant’s qualifications, and wrongly allowed him to continue in office, despite the Plaintiff drawing the matter to their attention.  They seek declarations:

(1)     The 3^rd Defendant is not a fit and proper person to serve or continue to serve as the Supervisor, principal, manager and/or teacher of the Schools: ;

(2)     The 1^st and 4^th Defendants breached their duties, essentially ones to the Plaintiff and/or under the EO to act reasonably to ensure the reputation of the Schools is not damaged[2].

2.4The 10-day trial of the present action is to commence on 15 September 2026.  The hearing of the pre-trial review is to take place on 16 June 2026.

3.The Application

3.1In these proceedings, the 3^rd Defendant and Rev Tong have each filed a witness statement.  In particular, it is expressly stated in Rev Tong’s statement that he has been authorized by the 1^st and 4^th Defendants to give evidence on their behalves.  Rev Tong is a pastor and the current president of the 4^th Defendant and also the president of the 4^th Defendant from 2009 to 2013.

3.2The Application is led by five letters all dated 18 September 2025 (“Letters”) in which the supporting grounds are set out in respect of each of the individuals subject to the Application.

(i)      The 3^rd Defendant

3.3The supporting grounds in respect of the 3^rd Defendant are, in gist, as follows:

(1)     It is noted that the 3^rd Defendant has served a witness statement in which he asserts that he had undergone the program for the PhD degree, including the completion of a doctoral theses.  However, it is said that there are a lot of matters missing in such assertions, including whether he has been assigned with a supervising professor, and if so, whether he had sent drafts of his thesis to the supervisor for comments and direction, and many more.  It is intended that the missing information will be elicited during the trial;

(2)     As the relief sought in the present case is a declaration, it is imperative that all the evidence that is material to the Plaintiff’s claim or the Defendants’ defence is placed before the court;

(3)     Unless the 3^rd Defendant is served with a writ of subpoena ad testificandum, it is uncertain whether he will attend the trial.

(ii)      Mr Lau

3.4Mr Lau has not filed a witness statement in these proceedings. According to the Plaintiff, he was the vice president of the 4^th Defendant from 2008 to 2012 and from 2014 to 2018. 

3.5The Plaintiff relies on the fact that the 3^rd Defendant had been held to be in contempt of court and the court had previously found in HCMP 937/2020 that the 3^rd Defendant had produced two different versions of the certificate in different actions[3] (ie in the present action and in HCA 1619/2014). 

3.6At the 3^rd Defendant’s witness statement §23, he mentioned that, in response to the Plaintiff’s allegations against him regarding his doctoral degree, he had shown inter alia the degree certificate to a number of persons including Mr Lau in November 2015 (the other persons being the 1^st Defendant and Mr Yeung).

3.7In the letter, the Plaintiff asserts (without identifying the source of the information) that in 2018, one Mr Ho Kin Chung, the current Supervisor of the Primary School, mentioned to the Plaintiff that Mr Lau supported the 3^rd Defendant as a candidate during the 2018 election.  The Plaintiff then asserts that Mr Lau “should have direct knowledge of how the 3^rd Defendant’s PhD certificate came about and the particulars of the election process in 2018.”

3.8It is pertinent to note that it is the Plaintiff’s position that as Mr Lau is within the 4^th Defendant, it is understandable that if he is invited to make a witness statement on behalf of the Plaintiff, he would decline to do so for conflict of interest or embarrassment.

3.9The Plaintiff asserts that fairness requires that Mr Lau be made available to give evidence at the trial.

(iii)      The 1^st Defendant

3.10Whilst the Plaintiff acknowledges that the 1^st and 4^th Defendants have authorized Rev Tong to make a witness statement on their behalves, the Plaintiff asserts that Rev Tong may not have any knowledge on factual matters which occurred during 2014 to 2017 in respect of the elections for the Supervisor of the Primary School, as he was in office only in 2009 to 2013.  In contrast, the 1^st Defendant was the president of the 4^th Defendant from 2014 to 2017.

3.11The Plaintiff contends that it is undesirable if the court is not assisted with the evidence from a witness with direct knowledge and fairness requires that the 1^st Defendant be made available for giving evidence at the trial.

(iv)      Rev Tong

3.12Whilst the Plaintiff acknowledges that Rev Tong has filed a witness statement, it is said that the statement merely gives an account on general matters.  It is alleged that Rev Tong should have knowledge on the verification checks on the truthfulness of the 3^rd Defendant’s academic qualifications when the 3^rd Defendant stood for election as the Supervisor of the Primary School.  It is intended that these areas will be explored with Rev Tong at the trial.

3.13The Plaintiff again contends that fairness requires that Rev Tong be made available for giving evidence at the trial and the issuance of a writ of subpoena ad testificandum will ensure his attendance.

(v)      Mr Yeung

3.14Mr Yeung is a solicitor and made an affidavit in HCMP 937/2020 in which he confirmed that his firm had kept the original PhD certificate of the 3^rd Defendant for the purpose of making discovery in HCA 1619/2014 which is a different version from that discovered in the present action in purported compliance with the order of DHCJ Le Pichon dated 3 June 2020.

3.15As noted by Au Yeung J in her Judgment on Sentence dated 21 December 2020 in HCMP 937/2020[4]:

“[2] The Order that was breached required the Respondent to produce his PhD certificate (“Certificate”) and to provide further and better particulars. The contempt in relation to provision of further and better particulars was purged on 29 October 2020, about a week before the hearing of the committal proceedings took place.

[3] The contempt in relation to the Certificate has not been purged. The Respondent only produced an apostillized copy of the Certificate. Inexplicably, it now appears that the Respondent has 2 “original” Certificates, which were never produced.

[13] The Respondent did purport to produce his Certificate but it turned out to be an apostillized copy (“Apostillized Certificate”). He averred that this was the only certificate that he had ever been given upon completion of his doctorate degree at the European University of Ireland. He had always thought that it was the original.

[14] After the Apostillized Certificate was produced for inspection, the Applicant’s solicitors quickly drew to the Respondent’s attention that the original certificate (“1st Certificate”) had been produced earlier in a related case, HCA 1619/2014. The Applicant sought the Respondent’s consent to produce a copy of the photo of the 1st Certificate to the Court.

[15] That suggestion was brushed aside by the Respondent on the excuse that no leave has been obtained from the Court to disclose documents used in another case. The Respondent maintained that the 1st Certificate was the same as the Apostillized Certificate.

[16] On the morning of this hearing, the Respondent lodged his 3rd affidavit and emails from the Applicant, which disclosed without doubt that the 1st Certificate and Apostillized Certificate were not the same…

[17] The Respondent had checked with his former solicitor in HCA 1619/2014 but the latter could not recall if the certificate he had seen was the original or not. The Respondent then surmised that the 1st Certificate was lost or misplaced. He claimed that his mixing up of the 2 Certificates was due to honest and genuine mistake.”

3.16It is said that Mr Yeung should have direct knowledge of how the 3^rd Defendant's PhD certificate came about and the particulars on how the original certificate was lost. 

3.17The Plaintiff contends that as Mr Yeung had been the solicitors for the 3^rd Defendant, it is understandable that if he is invited to make a witness statement on behalf of the Plaintiff, he would decline to do so for conflict of interest or duty of confidence.

3.18The Plaintiff again contends that fairness requires that Mr Yeung be made available for giving evidence at the trial.

(vi)      Master Kot’s requisitions and the Plaintiff’s answers

3.19On 2 October 2025, Master Kot raised a number of requisitions to which the Plaintiff provided its reply on 9 October 2025.  Insofar as relevant to my current deliberation:

(1)     Master Kot required the Plaintiff to justify with authorities as to why the Plaintiff has the duty to make sure the 3^rd Defendant and Rev Tong, being defence witnesses, will attend the trial.  The Plaintiff replied that it was unable to find any authority in support but submitted that as the court is invited to make a declaration, it is only just if and only if evidence concerned from all the parties concerned is placed before the court;

(2)     In relation to Mr Yeung, Master Kot required the Plaintiff to state what relevant evidence is expected from him as his involvement was only that his firm had been provided with the PhD certificate for the purpose of providing discovery in HCA 1619/2014.  The Plaintiff replied that in Mr Yeung’s evidence filed on HCMP 937/2020, he stated that (a) he received from the 3^rd Defendant a bag containing several documents and (b) he had perused the documents in the bag and listed them out in a List of Documents.  The evidence which the Plaintiff expects from Mr Yeung is whether the bag contained more than one PhD certificates and he chose to disclose one of them, or whether the bag contained only one PhD certificate and he disclosed it.   The expected evidence of Mr Yeung is relevant in that it will assist the court in making a finding on how the second PhD certificate came about, and in turn assist the court in making a finding whether the PhD certificates are genuine.

4.The applicable principles

4.1An appeal brought under RHC Order 58 is in the nature of a hearing de novo.

4.2The principles applicable to an application to issue a writ of subpoena are set out at Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89 §16:

“[The requirements for the issue of subpoena] were examined by the Court of Appeal in Li Man York Evelyn v Li Wai Tat Walton [1997] 3 HKC 532. In that case, Mortimer VP identified at p.534H the role of the judge or master in giving the requisite authorization as follows:

‘But it is only a filter process. He will ask himself such questions as: are the proceedings of such a nature as one would expect evidence to be called? Is this a cause or matter being heard in chambers in which oral evidence is appropriate? Is the application for a subpoena an abuse of process? Provided the answers to such questions are in favour of the applicant, he should give his note and grant leave. That filter process is one in which the judge should not and cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given and its usefulness.’” (emphasis added)

4.3In Big Island Construction (HK) Limited v Wu Yi Development Company Limited & Anor, HCA 1957/2005, 29 January 2020, the proper practice is set out:

“[2] Generally speaking, a party is entitled to call the oral evidence of witnesses who will assist him in presenting his case as a general right: see Li Man York Evelyn v Li Wat Tat Walton [1997] 3 HKC 532. However, he must act with due diligence in approaching his witnesses well in advance before the trial begins. Based on the witnesses’ response, the following practice should be adopted.

[3] If the witness is willing to assist, the party intending to call him should properly prepare his witness statement and exchange it with the other side in accordance with the court’s directions. If he fails to do so, he may not be allowed to call the witness: see Order 38 rule 2A(10) of the Rules of the High Court.

[4] If the witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the case management conference. And he should apply to issue the subpoena once the trial dates are known. Upon the issue of the subpoena, he should inform the other side forthwith. The other side should then decide if he wishes to apply to set aside the subpoena on grounds such as that the witness’s evidence is irrelevant or that the trial will be unduly expanded beyond the issues raised in the pleadings and matters necessarily ancillary thereto: see Phipson on Evidence (16^th edn), paragraphs 8-05, 8-08 and 8-20. Any setting aside application should be taken out as soon as practicable. All the applications pertaining to the subpoena should be disposed of before the pre-trial review.

[5] The above practice for subpoenaing a witness is to facilitate the more efficient, expeditious and fair management and disposal of cases and to ensure that the trial proper will not be impeded.

[6] After the CJR, as well as before it, the parties are expected to carefully and thoroughly think through all the preparatory steps leading up to the trial, including the decision whether to subpoena an unwilling witness. All interlocutory applications, including the one pertaining to a subpoena, should be disposed of before the pre-trial review. A late application may be dismissed on the basis of delay alone: see paragraph 34 of the Practice Direction 5.2 on Case Management. Dismissing a late application for delay alone applies with even greater force when it is taken out in the course of the trial. The applicant must justify the late application with good, strong reasons.

4.4Pertinently, the following observation is set out at Big Island §12:

“In any event, I agree with the submissions of Mr Fung, SC, for the Big Island Parties, that it is impermissible to call Mr Chua when it appears that the predominant reason for calling him is to impeach the credibility of the two witnesses called by them: see Phipson, supra, paragraphs 8-21.”

4.5It bears emphasis that the Plaintiff has not approached Mr Lau, Rev Mok and Mr Yeung to request for witness statements.  Indeed, it is the Plaintiff’s own case that Mr Lau and Mr Yeung are unlikely to be cooperative (§§3.8 and 3.17 above) and there is no reason to think otherwise in respect of the 1^st Defendant.  The observations set out at Big Island §§3 and 12 are also made in Tsui Koon Wah v Director of Social Welfare, HCA 2938/2003, 17 February 2006. 

“[28] Secondly, under Order 38 rule 2A(10) of Rules of the High Court, where a party fails to comply with the direction for the exchange of witness statements, he shall not be entitled to adduce evidence without the leave of the Court. In the present case, the direction for exchange of witness statements was made as early as 5 December 2003. Given his failure to serve signed statements of these intended witnesses, the plaintiff cannot adduce evidence from them unless the court has granted leave. The issue of witness subpoenas is no assurance that the plaintiff will be allowed to call these witnesses at the trial of this action. The court will only give leave to adduce evidence from witnesses who had not given statements as directed if the party can show good reasons for not serving witness statements in compliance with the direction for exchange of witness statements: see Hong Kong Civil Procedure 2006 vol.1 para.38/2A/15.

[29] Further, Order 38 rule 2A(5) provides that where a party is unable to obtain a written statement from an intended witness, the Court may direct the party wishing to adduce that witness's evidence to provide the other party with the name of the witness and (unless the Court otherwise orders) a statement of the nature of the evidence intended to be adduced. This reinforces the point that the plaintiff cannot expect to be entitled as of right to adduce evidence from witnesses whom he has subpoenaed. He must at least demonstrate that he is unable to obtain signed written statements from his intended witnesses. This entails him making efforts to approach his intended witnesses to request for witness statements.

[33] Thirdly, it is the plaintiff’s case that his intended witnesses had acted together with the defendants of the defamation case to cause his dismissal. Prima facie, the plaintiff has no reason to think that these witnesses will testify in support of his claim. This calls into doubt the plaintiff’s real purpose in issuing subpoenas to these witnesses. Indeed, the plaintiff contended in his letter that it was open to him to cross-examine his witnesses, relying on sections 12 and 14 of the Evidence Ordinance, cap. 8 and Part L of Hong Kong Civil Procedure 2006. It appears that the plaintiff is not calling these witnesses to support his claim, but rather to cross-examine them and probably with a view to impeaching their credit. Quite apart from whether this is a legitimate purpose, it is trite that the plaintiff has to demonstrate that the witness is adverse or hostile at trial before he will be permitted to cross-examine his own witness. Given the plaintiff’s case about these witnesses and in the absence of witness statements, it is highly doubtful that the plaintiff can avail himself of the provisions in the Evidence Ordinance or the common law rule of hostile witness.” (emphasis added)

5.Analysis

5.1The Application is a late application in the sense described at Big Island §4.  The witness statements of the 3^rd Defendant and Rev Tong were filed in July 2023.  Leave to set down was granted on 19 December 2023 and the Plaintiff had previously confirmed in its Listing Questionnaire dated 6 December 2023 that no further interlocutory application would be taken out.  Yet, the Application was only issued in September 2025.  No explanation was given in the Letters. 

5.2Even if it may be said that the Application should not be refused on the basis of delay alone, for the reasons set out below, I am of the firm view that Master Kot is correct in refusing the Application.

5.3In respect of the 3^rd Defendant and Rev Tong, on the Plaintiff’s own admission, there is no authority to support the proposition that it has the duty to ensure the attendance of the defence witnesses.  I do not regard there is any merit in the Plaintiff’s reliance on the fact that the relief it seeks is declaratory in nature.  If either the 3^rd Defendant or Rev Tong does not turn up at the trial, short of any proper justification being given such that the Defendants may resort to relying on hearsay evidence (subject to issue of weight), the defence case will be weakened in the absence of the evidence and the court can determine whether the declaratory relief should be granted.

5.4As regards Mr Lau, Rev Tong and Mr Yeung, like the observations made in Tsui Koon Wah, there is no reason to think that these witnesses will testify in support of his claim.  For avoidance of doubt, I equally do not regard there is any merit in the Plaintiff’s reliance on the fact that the relief it seeks is declaratory in nature.

5.5In respect of Mr Lau, it is plain that the purpose of calling him is to (hopefully) discredit the 3^rd Defendant’s evidence given at his statement §§22-25, namely after the 3^rd Defendant had shown the relevant transcript and the PhD certificate to the 1^st Defendant, Mr Lau and Mr Yeung in November 2015, he was told by the 1^st Defendant that, after considering the relevant transcript and the degree certificate, the 4^th Defendant did not consider there to be any issue, so much so that the 4^th Defendant issued a public statement on 19 November 2015 confirming its continued support for the 3^rd Defendant retaining his post as the Supervisor. 

5.6In respect of the 1^st Defendant, it seems to me clear that the purpose of calling him is to (hopefully) discredit the evidence of the 3^rd Defendant and Rev Tong (see for example the preceding paragraph).  In passing, I note that whilst Rev Tong did not hold office between 2014-2017 (and it is the Plaintiff’s case that the evidence for that period should be given by the 1^st Defendant), Rev Tong’s witness statement does cover the period from 2015 onwards, ie from the time the Plaintiff first complained about the 3^rd Defendant’s academic qualifications.  The Plaintiff is at liberty to challenge Rev Tong’s knowledge of those matters which happened during the period in which he did not officially hold office.

5.7I further note that the Plaintiff has not approached the 1^st Defendant (or Mr Leung and Mr Yeung for that matter) to make a witness statement.  If it is the Plaintiff’s intention that the 1^st Defendant is to give his evidence for the first time in the witness box, and presumably in respect of an extended period and on a plethora of issues, I share the learned Master’s view that it will have the effect of prolonging and derailing the trial.  The foregoing concern becomes more acute if the Plaintiff seeks to turn the 1^st Defendant hostile so as to cross-examine him (Tsui Koon Wah §33).

5.8In respect of Mr Yeung, for the limited purpose identified by the Plaintiff (§3.19(2) above), it is plain that the Plaintiff is not able to state that the evidence of Mr Yeung will assist the Plaintiff’s case.  In any event, the existence of more than one version of the PhD certificate is not disputed by the 3^rd Defendant.

5.9For the above reasons, I am of the view that the Plaintiff’s appeal against the Decision should be dismissed.  In my view, the Application is plainly pursued for the predominant purpose of impeaching the evidence of the 3^rd Defendant and Rev Tong.  The conduct of the Plaintiff has been criticized by the court, and he has been characterized as a vindictive litigant: Koo Ming Kown v Chan Chi Mong Hopkins & Ors, HCA 1619/2014, 2 June 2017 §22.

5.10I should point out that the observations set out in Big Island were raised at the hearing before me, at which Mr Leung was unable to provide meaningful assistance.  Following the hearing, Mr Leung, without leave, lodged further submissions on the basis that he was “duty bound” to do so.

5.11As has been noted at Tsui Koon Wah §30, it is not a proper course for a party to lodge post-hearing submissions to raise further arguments after the hearing had concluded and the court had retired to consider the decision. If any further authority is required, see To Pui Kui, the Adminstratrix of the estate of Ng Po Sum, deceased v Ng Kwok Piu, CACV 281 of 2012, 21 August 2014 §§55-61.

5.12I do not grant leave to the Plaintiff to rely on the further submissions, not least because the Plaintiff seeks to address matters which were already set out in the authorities relies on (but as accepted by Mr Leung overlooked).

5.13In case the Plaintiff takes the matter further, I set out my brief views on the Plaintiff’s further submissions.  It is said that the English cases cited by the Plaintiff demonstrate that the court (1) only concerns itself with whether the evidence to be given by the intended witnesses is relevant and that the issuing of the witness summons is not an abuse of process and (2) the court will not set aside a witness summons for the reason that the intended evidence will contradict a party’s case or the evidence of the opponent’s case.  The Plaintiff further draws the distinction between calling evidence to support its claim (in the sense of damaging the evidence of the defence witnesses) and impeaching the credibility of the defence witnesses.

5.14I do not consider the submissions made therein alters the analysis set out above.  Despite the Plaintiff’s submissions to the contrary, I am of the view that the observations set out at Big Island §12 is tolerably established.  See also Tsui Koon Wah §33.  

6.Conclusion

6.1For the above reasons, I dismiss the Plaintiff’s appeal against the Decision.  I further make a costs order nisi that there be no order as to costs.

Mr Kelvin LEUNG, instructed by Messrs How & Co, for the Plaintiff