Four Treasure Zhuhai Ltd v. Zhuhai Greenery Hotel Co Ltd

HCMP 2109/2022

[2026] HKCFI 3780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2109 OF 2022

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BETWEEN

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DECISION

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1.Introduction

1.1By its summons dated 16 January 2026 (“Summons”), the Defendant (“D”) applies for leave to replace its current expert on Mainland law, namely 劉光大律師 (“Mr Liu”), with 蘇代平律師 (“Mr Su”). An expert opinion compiled by Mr Su dated 16 January 2026 (“Su’s Report”) is annexed to the Summons. Previously, on 8 July 2025, D had adduced into evidence a report prepared by Mr Liu (“Liu’s Report”). In these proceedings, the Plaintiff (“P”) relies on the expert evidence of 洪群軍律師 (“Mr Hung”).

1.2This is my decision on the Summons. Directions were given for an evidential timetable and for the Summons to be disposed of on the papers. I have received helpful written submissions from Mr John Hui for D and Mr Kenny Lin for P.

2.A brief procedural chronology

2.1By an Amended Originating Summons filed on 14 February 2023 (“AOS”), P seeks (in essence) specific performance of a property transfer agreement (“PTA”) entered into between P and D on 25 September 2009, requiring D to effectively vest a property located in the Mainland (“Property”) in P’s name. I had previously handed down a decision dated 31 March 2025 dismissing D’s jurisdictional challenge[1].

2.2Following the dismissal of the jurisdictional challenge, a timetable was given for the parties to file evidence on the AOS. In terms of expert evidence, the disputed issues may generally be stated to be as follows: (1) Whether D is prevented from transferring the Property pursuant to the lex situs by reason of alleged failures to comply with mandatory requirements under the Mainland law, (2) Whether the PTA has legal force under the Mainland law and (3) whether a Hong Kong court order for specific performance is enforceable in the Mainland under the lex situs. Mr Lin has not suggested that the foregoing disputes are frivolous.

2.3At the hearing on 20 August 2025, I directed a without prejudice meeting to be held between Mr Liu and Mr Hung and for the experts to prepare and file a joint statement (“20/8/25 Order”).

2.4There was a case management hearing on 21 November 2025. Pertinently, I made, inter alia, the following orders (“21/11/25 Order”):

(1) As the parties did not comply with the 20/8/25 Order, I granted a 28-day extension of time for the experts to file a joint statement (ie by 19 December 2025) and directed that were the experts unable to agree on a joint statement by the extended deadline, the requirement for the parties to file a joint statement be dispensed with;

(2) The parties do take out any further interlocutory applications (if any) on or before 16 January 2026;

(3) Leave was given to the parties to fix a substantive hearing of the AOS with an estimated duration of 5 days;

(4) The parties do respectively tender Mr Liu and Mr Hung for cross-examination at the substantive hearing, failing which the expert evidence could not be relied upon unless otherwise directed by the court.

2.5The substantive hearing has been fixed to commence on 3 August 2026. Despite the extension of time, no joint statement has been filed by Mr Liu and Mr Hung.

2.6Only for completeness, at the hearing on 21 November 2025, I made a number of preliminary comments on some of the apparent inadequacies in Liu’s Report which might be seized upon by P in cross-examination at the trial. However, as neither party has suggested that the Summons has been taken out for that reason, I say no more about that.

3.D’s grounds

3.1The grounds advanced by D in support of the Summons are set out in the 5^th Affirmation of 李萬軍先生 (“Li 5^th”) dated 16 January 2026. They may be summarized as follows:

(1) Li 5^th §6[2]: On an unspecified date, Mr Liu informed P that he has encountered some unidentified health problems (“Ground 1”) and an unparticularized clash with his own schedule (“Ground 2”) such that he could not attend the trial of the AOS;

(2) Li 5^th §7[3]: In any event, the fees charged by Mr Liu are significantly higher than Mr Su’s. The total fees and expenses which D has incurred as a result of this litigation have been substantial and have grown beyond D’s original budget, such that D has no choice but to opt for Mr Su (“Ground 3”);

(3) Li 5^th §§22-23: The present application is not an exercise in expert shopping, the suggestion being that Su’s Report is not demonstrably more advantageous to D than Liu’s Report, and D believes that no prejudice is caused to P should the Summons be granted (“Ground 4”).

4.The applicable principles

4.1Both counsel have referred to Law Chung Fai v Lam Ming Kuen, HCPI 96 of 2008, 13 September 2010 §9, at which the following principles regarding change of experts are summarized:

(1) The court’s discretion, whether or not to allow a party to change his expert, is exercised within the ambit of the court’s management powers. These powers must be exercised in the light of the underlying objectives of the civil justice reform, including the need to ensure the cost effectiveness of the proceedings; to ensure that the case is dealt with expeditiously; to ensure reasonable proportionality having regard to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party; to ensure procedural economy in the conduct of the proceedings; and to ensure fairness between the parties;

(2) In the exercise of its powers of case management, the court recognises that the primary aim is to secure the just resolution of the dispute in accordance with the substantive rights of the parties;

(3) Expert shopping is undesirable and, whenever possible, the court will use its powers to prevent it. It can lead to potential unfairness between those who can afford to shop around for the opinions of more than one expert and those who cannot. Expert shopping is not conducive to cost effectiveness of the proceedings and the expeditious disposal of a case;

(4) The disclosure of the original expert’s report, and the waiver of the privilege that would normally be attached to it, would usually be imposed as a condition for granting permission to call a substitute expert. However, the disclosure of the original expert’s report per se does not guarantee that the court would permit a substitute expert to be called;

(5) To curtail expert shopping, the court may refuse to grant leave if the only reason for calling a substitute expert is that his opinion is more favourable to the party calling him than the opinion of the original expert;

(6) However, if the court is satisfied that the just resolution of a dispute requires leave to be granted for a substitute expert to be called, it should not refuse leave simply because the opinion of the substitute expert is more favourable than that of the original expert;

(7) In every case, the court should examine the grounds put forward by the substitute expert and make a preliminary assessment of the cogency of those grounds as compared with those set out in the report of the original expert and the report of the expert engaged by the other side. If the court is satisfied that there are relevant matters canvassed by the substitute expert which may be important to the just resolution of the dispute which was omitted from the reports of the original expert, or which was outside the expertise of the original expert, a prima facie case would be made up for the admission of the substitute expert report in the interests of the just resolution of the dispute;

(8) In every case, however, the court must also have regard to other relevant circumstances, such as the potential disruption to the trial, the prejudice to the other parties, and the explanation offered by the applicant for the change of experts. All these matters have to be considered and weighed in the light of and against the underlying objectives of the civil justice reform: to ensure cost effectiveness and economy, expedition, proportionality, and fairness between the parties;

(9) It is not possible to lay down definitive and exhaustive guidelines to cover and cater for every possible situation that may arise and which prompts an application by a party to change his expert;

(10) Ultimately, the court strives to do justice between the parties and, in cases where the court permits the parties to call expert evidence, the court strives to ensure a level playing field with fair access to proper experts for all parties.

4.2As pointed out at Choy Yuen On, David v Lam Kin Chung & Anor [2021] HKCFI 287 §44, the onus is on the applicant to show good reasons for the proposed change in expert:

“The approaches explained in the above-mentioned cases are in my view entirely consistent. They explain that the Court, when faced with an application to replace an expert, should be alive to the possibility of expert shopping and the undesirable consequences which such conduct can lead to. But on the other hand, the Court should not as a rule simply shut its door to any application for change of experts, but should consider all the circumstances in ways as explained in those cases to see whether good reasons have been shown. The onus of showing good reasons is on the applying party. Ultimately, what the court strives to do is to do justice between the parties.”

4.3Mr Lin relies on Wing Ming Garment Factory Ltd v The Incorporated Owners of Wing Ming Industrial Centre, HCCT 60 of 2006, 15 February 2002 for the following propositions:

“[33] However, when a party presents a report by a new expert to the court as a fait accompli on the very flimsy ground that the original expert is too busy to continue with the case and the party offers no explanation on why an application for change could not have been made before the new expert is asked to prepare the new report, then the court would be very slow to grant the application, otherwise the court’s discretion to allow a change of expert would be usurped by the party seeking the change. That should not be allowed.

[34] I also echo the view of Deputy Judge Carlson in Winford (Hong Kong) Ltd v Ricacorp Properties Ltd, HCA2481/2008 at paras.5-9 that, “no prejudice to the other side which cannot be compensated by costs” is not a sufficient argument for the party seeking leave.”

5.Analysis

5.1For the following reasons, I agree with Mr Lin that D has not discharged the onus of showing good reasons for the proposed expert change.

(i) Grounds 1 and 2

5.2As pointed out in P’s evidence, Grounds 1 to 3 are bare and entirely unparticularized allegations.

5.3As an overarching explanation, D asserts at Li 6^th §§4-5 that any further information on Mr Liu’s health and his schedule is in the domain of private information, and since Mr Liu is not D’s staff, D is not in a position to compel Mr Liu to provide the information:

“[4] … 原告人指控我方沒有提供證據或明細證明 [Mr Liu] 的身體狀況及個人日程。然而，這方面的證據明細屬於 [Mr Liu] 的個人私人資料。[Mr Liu] 是獨立的專家證人而非我方員工或職員，我方沒有能力或權力強制要求 [Mr Liu] 披露私人健康資料或日程，[Mr Liu] 是否願意披露有關明細證據純粹自願。

[5] 再者，考慮到與 [Mr Liu] 已經表達了不能繼續擔當作為當我方的中國法律專家證人的意願，我方可以理解 [Mr Liu] 為何不願意披露相關證據和資料，包括醫療報告及個人日程。原告人不應因為我方未能提供進一步的明細，而自動否定我方要求更換證人的事實基礎。”

5.4It is notable that Li 6^th §§4-5 do not in terms state that D had requested Mr Liu, but Mr Liu refused, to provide supporting evidence.

5.5I first deal with Ground 1. On the authorities cited by Mr Hui himself, the court needs to be satisfied on the evidence that there exists an alleged health problem which prevents the original expert from further participation in the case. For example:

(1) At Vilca v Xstrata Ltd [2017] EWHC 1582 (QB) §§29 and 31, it was accepted by the court that (a) the reason for the change in expert was explained coherently and (b) the possibility of the party who engaged the original expert wishing to call the original expert, or the original expert be able to be called at trial was so unlikely as to be fanciful;

(2) At University of Manchester v John McAslan & Partners Ltd & Anor (Gilford Global Ltd, Third Party) [2022] EWHC 2750 (TCC) §80, the court expressly stated that there was in the court’s view sufficient evidence before it that the reason why the original expert was no longer to be called was because of an unfortunate deterioration in his health.

5.6In the present case, the evidence adduced by D is far from satisfactory. Indeed, P has adduced evidence that Mr Liu continues to practice at 廣東萊特律師事務所 and, as late as March 2026, had continued to publish legal information in his public WeChat account.

5.7The timing is also significant. As.noted above, D has not told the court precisely when Mr Liu informed D of his health problems. Given that Su’s Report is dated 16 January 2026 and it is D’s evidence at Li 5^th §11 that Mr Su had carried out in-depth analysis (對本案爭議有進行深度的獨立思考及判斷), the inference is that Mr Liu had informed D of his health problems well before mid-January 2026. The following observations therefore arise:

(1) First, if it is suggested that Mr Liu’s health concern discovered in late 2025 is so debilitating that Mr Liu cannot attend the trial in August 2006, one would have thought that the nature of the alleged health condition would at the very least be generally outlined to D, irrespective of Mr Liu providing any documentary support. The nature of the health concerns has not even been identified in D’s evidence;

(2) Secondly, it is unlikely that Mr Liu would have informed D of his health conditions orally, and D has not even adduced any records (for example WeChat correspondence which is a common means of communication in the Mainland) to show that Mr Liu did raise any health issues with D;

(3) Thirdly, even if Mr Liu informed D of his health concerns orally, D has not even particularized in its evidence to whom within D was such information communicated;

(4) Fourthly, as noted above, there is in fact no evidence to suggest that D had approached Mr Liu to provide documentary support and, in this regard, I do not see any difficulty for D to ask Mr Liu to simply confirm by WeChat of what he had allegedly told D (no more and no less), especially given that the evidential deficiency was squarely raised by P.

5.8Turning to Ground 2, D’s evidence is even more unsatisfactory. As noted in the above procedural chronology, the hearing dates of the substantive hearing were only fixed after the 21/11/25 Order. Having checked the records, the hearing dates of the substantive hearing were in fact fixed on 3 December 2025 and one would have thought that the trial dates were fixed with Mr Liu’s availability in mind. Given that Mr Su was very likely engaged in late December 2025, it would therefore mean that the Mr Liu’s alleged unforeseen schedule clash would have been known sometime between 3 December and late December 2025. There are a number of observations arising from the evidence adduced by D:

(1) There is no explanation by D as to what is the nature of the alleged unforeseen schedule clash such that no accommodation may be made by Mr Liu to attend the trial some 8 months later in August 2026, bearing in mind that Mr Liu is not required to attend the entirety of the trial for cross-examination;

(2) On the evidence, D has given no consideration to the possibility of Mr Liu giving evidence by video conferencing facilities to minimize the impact caused by the alleged but unparticularized schedule clash;

(3) If the schedule clash was known before 19 December 2025 (ie the extended deadline for Mr Liu and Mr Hung to file the joint report), one would have thought that D would already have raised the issue with P;

(4) The matter stated in the preceding subparagraph, were it to be the case, leaves one wondering whether there was any genuine attempt to compile a joint statement as directed by the court;

(5) There is no justification for D to have taken out the Summons on 16 January 2026 only to meet the deadline imposed under the 21/11/25 Order for interlocutory applications to be taken out and only after Su’s Report has been prepared;

(6) There is even less justification, as observed in Wing Ming, to present the proposed replacement as a fait accompli;

(7) The observation made at §5.7(4) above that the evidence does not suggest that D had approached Mr Liu, and Mr Liu refused, to provide documentary support is repeated mutatis mutandis.

5.9For all the above reasons, I do not accept, on the evidence, that Grounds.1 and 2 amount to good reasons in support of the Summons.

(ii) Ground 3

5.10Ground 3 is yet another bare allegation. D has not even adduced any documentary evidence or given particularization to show that Mr Liu’s fees are so much higher than Mr Su’s such that there is a material difference, especially given what is at stake and the hitherto quality of D’s legal representation, having engaged 3 counsel for the purpose of the jurisdictional challenge.

5.11I also accept Mr Lin’s submissions that the allegation that there is a considerable saving on D’s part must be critically viewed in the light of the indisputable facts that (1) Mr Liu has already completed his report and his outstanding involvement is primarily limited to attending the trial for cross-examination and (2) conversely, Mr Su’s fees have to be assessed on the basis that he has to start from scratch and he similarly has to attend the trial for cross-examination. It would therefore mean that, on D’s case, Mr Liu’s fees (to attend the trial only) are substantially higher than Mr Su’s fees for starting from scratch and attending the trial which appears to make no commercial sense. In any event, no evidence has been placed before me as to why Mr Liu is in a position to demand substantially higher fees than Mr Su. In this regard, Liu’s Report does not set out Mr Liu’s qualifications in detail. Conversely, it is plain that Mr Siu is an experienced practitioner since (1) he had been a judge for 27 years and at one point the court leader (庭長) of 民六庭of the Guangdong Intermediate People’s Court and (2) after leaving the Mainland judiciary, he has since 2019 been in private practice.

5.12Indeed, D has not even particularized when it formed the view that Mr Liu’s fees has become prohibitive. Having engaged Mr Liu to prepare the substantive work of preparing Liu’s Report, it seems to me entirely unlikely that D would have been taken by surprise by Mr Liu’s proposed fees for attending the trial, as Li 5^th §7 (reproduced at Footnote 3 above) appears to suggest. There was certainly no such indication that D had formed such view at the time of the hearing on 21 November 2025 when I extended the time for Mr Liu and Mr Hung to compile a joint statement.

5.13At Li 6^th §10, D explains that disclosing documentary evidence of the fee structures of Mr Liu and Mr Su would reveal D’s litigation strategy as a justification for refraining from doing so. I am unable to accept the foregoing explanation. Apart from repeating D’s evidence in his written submissions, Mr Hui has not explained what or how litigation strategy may be revealed by the inclusion of simple information such as (1) the hourly rates or proposed fees of Mr Liu and Mr Su, (2) the time already spent by Mr Liu and (3) the projected time going forward to be spent by Mr Liu and Mr Su.

5.14I do not accept, on the evidence, that Ground 3 constitutes a good reason in support of the Summons.

(iii) Ground 4

5.15The draft order proposed by D envisages the filing of a report by Mr Hung in reply to Su’s Report. This is a fair concession as D recognizes that a different nuance is placed on various matters in Su’s Report when compared to Liu’s Report. For avoidance of doubt, I have not lost sight of D’s submission that there is a larger measure of agreement expressed in Su’s Report with the opinion expressed by Mr Hung.

5.16As noted above, Mr Lin has not suggested that the disputed issues and I am content to proceed on the basis that they are complicated. Even proceeding on the assumption that there are no material changes between Su’s Report and Liu’s Report on the disputed issues, as is often in cases involving complicated matters, even a difference in nuance can give rise to a different complexion which need addressing. In my view, there is no justification for P’s expert and legal team to divert their attention away from preparing for the imminent trial to identify and address such new nuances, especially in the light of my conclusions on Grounds 1 to 3 above. In any event, as pointed out by Mr Lin (relying on Wing Ming), the lack of prejudice caused to P is not of itself a sufficient argument for the party seeking leave.

6.Conclusion

6.1For all the above reasons, in the exercise of my case management discretion, I dismiss the Summons. For avoidance of doubt, I place the greatest weight on my conclusions reached in respect of Grounds 1 to 3.

6.2I also make a costs order nisi that D is to pay to P the costs of the Summons to be summarily assessed. P is to lodge and serve its statement of costs (limited to 2 pages) within 3 days hereof and D its statement of opposition (limited to 2 pages) within 3 days thereafter. Summary assessment will then be carried out on the papers.

Mr Kenny Lin, instructed by Messrs Fairbairn Catley Low & Kong, for the Plaintiff

Mr John Hui, instructed by Messrs Sit, Fung, Kwong & Shum, for the Defendant