Oldham Li & Nie (A Solicitors Firm) v. Robert William Hong San Yung

DCCJ 1202/2005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1202 OF 2005

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BETWEEN

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Coram : Deputy Judge W. Lam in Open Chambers

Date of Delivery of Decision :  10^th October 2005

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DECISION

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1.This application is relevant to a Mercedes Benz car given by the Defendant to the Plaintiff for sale in partial satisfaction of Defendant’s debt to the Plaintiff, which is referred to in my Decision delivered on the 16th September 2005, and I refer to paragraphs 1, 2 and 3 thereof.

2.As a result of my abovementioned Order, the Plaintiff has filed an affidavit stating it has never had any document, regarding the sale of the car in question, in the Plaintiff’s possession custody or power.  The Defendant is not satisfied that the deposition was genuine and has therefore taken out today’s Summons for an “Unless Order” to compel the Plaintiff to file a further Affidavit and/or Further and Better List of Documents under pain of having its whole claim struck out.  For the relevant Order and consequences of non-compliance, the parties refer me today to Hong Kong Civil Procedure (2004 edition)on O.24 R.7 especially explanatory note 24/16/2.  A classic “non-compliance” has been described in precedent cases as non-compliance with either a “time order” or a “compliance order”, the latter in my view may better be described as a “substance order”.  Today’s alleged non-compliance is about a “substance order”, which for obvious reasons is more difficult to prove than non-compliance with a “time order”.  The Plaintiff says it had never been the car’s registered owner, and so I consider it entirely possible that it has never had possession custody or control of the motor registration or transfer documents.  I accept that any document evidencing receipt of moneys and/or deposit is much more likely to have been in existence, because this was not an ordinary amount of cash changing hands between friends or relatives, but in payment for a solicitor’s professional fees charged to a client.  However I must say at once that on the basis of one line in the Plaintiff’s affidavit denying having ever had possession custody or power of any document, without myself seeing evidence such as a copy of such a document, or hearing evidence from witnesses who had seen, for example, such a document, or seen a member of the Plaintiff’s firm banking the relevant cash into a particular bank, I am not prepared to accept the most serious allegation that the deponent in today’s case, who is an Officer of the Court, has filed an affidavit deposing a lie with its dire consequences. 

3.I agree with the Defendant that under normal situations the Plaintiff would have had at least one relevant document, but if the Plaintiff has never had any, then as the vernacular says, “One cannot squeeze blood out of stone”.  The Defendant can of course issue interrogatories as to precisely what had happened to the car from the time it had come into the Plaintiff’s direct or indirect control to its eventual sale, and what happened to the proceeds of sale, in sequence with dates, even though it is possible that the dates can be no better than approximate ones.  In the alternative or in addition to the above, if the Defendant can secure a second-hand car valuation chart to show the value of that model of Mercedes Benz at that time (for example that it was indeed worth $230,000), the Defendant can always tender this evidence at trial.  If the Plaintiff cannot produce evidence to show that the car netted only $120,000 to the Firm, then the Plaintiff runs the risk of the trial court finding that it had received the former amount and not the latter.

4.As to striking out the Plaintiff claim, in addition to the sentiments expressed in the above-mentioned explanatory note 24/16/2, I consider this request to be out of proportion to the inability to produce just one document, particularly when this one document, even if it had existed, does not represent the whole amount of the Plaintiff’s claim. 

5.For the above reasons I do not consider it proper to make the “Unless Order” sought.  As to costs, I do recognise that today’s application has some most unusual features, and that the Defendant had legitimate reasons for saying the Plaintiff’s affidavit (the one dated 21st September 2005) was suspicious.  I order that today’s costs to be in the cause.

Plaintiff represented by Ms. S. Cheuk of Oldham Li & Nie.

Ms. Emi Cheng of Messrs. Robertsons for the Defendant.