Primarius Capital Llc and Others v. Jayhawk Capital Management, Llc and Others

HCMP 1961 / 2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1961 OF 2008

------------------------

BETWEEN

------------------------

Coram: Deputy High Court Judge Au in Chambers

Date of Hearing: 30 January 2008

Date of Decision: 21 April 2009

------------------------

D E C I S I O N

------------------------

A.  Introduction

1. This is an application^[1] by Mr Albert Chen and Golden Meditech Company Ltd to set aside an ex parte Order granted by me on 14 October 2008. 

2. The Order ordered, amongst other witnesses, (a) Mr Chen to give evidence before, and to provide certain documents to, an examiner appointed by the Claimants in Hong Kong for use in an arbitration proceedings (“the US Arbitration”) to take place in the state of California, USA, and (b) the custodian of records of Golden Meditech to provide certain documents to the examiner and make an affidavit concerning the same.   Mr Chen was Golden Meditech’s Vice President for Finance.

3. The US Arbitration were brought by the Claimants against the named Respondents.  It should be noted that Mr Chen and Golden Meditech (collectively “the Applicants”) are not amongst the named Respondents.

4. The Order was made under O. 70 of the Rules of the High Court and Part VIII of the Evidence Ordinance (Cap 8), in response to a number of letters of rogatory issued by the Superior Court of the State of California for the County of Los Angeles (‘the California Court”) against certain individuals and corporate bodies (including Mr Chen and Golden Meditech) named in them.

5. The Applicants’ effective grounds (which will be elaborated below) in seeking to set aside the Order are that the Claimants’ application does not satisfy the statutory requirements provided under the Evidence Ordinance, as the scope of the evidence sought under the Order is irrelevant to the US Arbitration and/or so unspecified and wide, such that the application is not a genuine attempt to obtain discovery but to fish for evidence. 

6. To understand the Applicants’ contentions in context, I will first set out the relevant background in relation to the US Arbitration and the issue of the letters of rogatory.

B.  Background to the US Arbitration and the Order

7. The background to the US Arbitration as shown in the evidence and the Claimants’ Demand for Arbitration^[2] (“CDFA”) dated 27 September 2007 placed before the court can be summarized as follows. 

8. The Claimants are a group of hedge funds management companies and their partners in the USA.  The Respondents are similarly a group of fund managers and their partners.  Mr McCarthy (the 5^th Respondent) is the principal of the other Respondents.

9. After various negotiations, the Claimants and the Respondents executed a Management Transfer Agreement with effect from 1 June 2003.  Under the Agreement, the Respondents would, amongst others, participate in 10% of certain fees collected from investors in the Claimant group of funds.

10. As times went by, the business inter-relationship between the Claimants and the Respondents had become closer and closer, as a result of which, by late 2003, the Respondents had full access to the Claimants’ holdings and trading activities. 

11. The Claimants waived a large part of charges and fees against the Respondents which would have otherwise been levied to allow such activities to be carried out by the Respondents.

12. In return for such treatments, Mr McCarthy would act as the Claimants’ investment advisor and research analyst.

13. It is the Claimants’ case that, by reasons of the above intricate business relationship between them, the Respondents owed them fiduciary duties. 

14. The Claimants now say the Respondents have been in breach of the fiduciary duties.  Mr Wong (counsel for the Claimants) submits that the wrongdoings alleged to have been committed by the Respondents as pleaded in the CDFA are in essence as follows:

(1)  Providing fraudulent investment advice:  the Respondents had advised the Claimants to buy or maintain their position in certain securities when the Respondents were selling large quantities of them at the same time.

(2)  Perpetrated front-running on the Claimants: the Respondents requested a withdrawal of substantial money from its investment in the Claimants’ funds, knowing that the Claimants might have to sell certain securities in order to accede to the request.  At the same time the Respondents were selling large quantities of the same securities, thereby greatly depressing the value which the Claimants could realize. 

(3)  Improperly manipulated the market price for certain securities and advised the Claimants to trade in a way which caused significant losses to the Claimants.

(4)  Failing to inform and advise the Claimants of investment strategies to avoid losses in trading.

15. In relation to the above alleged wrongdoings, Mr Wong further categorizes the Claimants’ causes of action in the US Arbitration as follows:

(1)  Breach of US statutes;

(2)  Fraud;

(3)  Breach of fiduciary duties;

(4)  Breach of the Agreement;

(5)  Civil conspiracy;

(6)  California Unfair Business Practices Act;

(7)  Declaratory relief.

16. Pursuant to an arbitration agreement between the parties, the Claimants commenced the US Arbitration against the Respondents on 27 September 2008 by filing the CDFA.

17. The Respondents denied the Claimants’ allegations in their Answer and Affirmative Defences.  The defences put forward include estoppels, waiver and the doctrine of unclean hands.  The Respondents also mounted a counterclaim in the US Arbitration alleging that the Claimants were in breach of the Agreement, fiduciary duties and fraud.

18. Upon the application of the Claimants, on 2 September 2008, the California Court issued the letters of rogatory seeking the assistance of the Hong Kong courts to summon, inter alia, (a) Mr Chen and Golden Meditech to provide various documents as set out in the schedules of the letters of rogatory to an examiner to be appointed by the Claimants, and (b) Mr Chen to appear before the examiner to give evidence.

19. As I mentioned above, on the Claimants’ ex parte application, I granted the Order against Mr Chen and Golden Meditech.

20. Under the Order, the documents (dated or created between 1 October 2002 and the present) required respectively to be produced by Mr Chen and Golden Meditech are practically identical and are as those set out in Exhibit A attached to the respective letter of rogatory.   They are as follows:

(1)  All documents that constitute refer or relate to any communication between Mr McCarthy (i.e., the 5^th Respondent), the 1^st, 2^nd, 3^rd and/or 4^th Respondents, on the one hand, and Golden Meditech on the other pertaining to the business of Golden Meditech, any security issued by Golden Meditech, including without limitation any public offering or private offering of any such security, and/or the financing of the purchase of any such security by any Respondent.

(2)  All documents that constitute refer or relate to any communication between Golden Meditech and any Respondent pertaining to the listing of any security issued by Golden Meditech on any US exchange.

(3)  All documents that constitute, refer or relate to any communication between Golden Meditech and any Respondent pertaining to any public offering of any security issued by Chain Medical Technologies, Inc (“China Medical), and/or to any purchase by any Respondent of any security of China Medical in any such public offering.

C.  The Law

21. Mr Wong for the Claimants does not dispute that the following legal principles govern the grant of an order under letters of rogatory as submitted by Mr Beresford (counsel for the Applicants).

22. Part VIII of the Evidence Ordinance (Cap 8) provides for giving effect to letters of rogatory.  It is based on the Evidence (Proceedings in Other Jurisdictions) Act 1975. 

23. Relevant to this application is section 76 of the Evidence Ordinance which provides as follows:

“76. (1)     Subject to this section, the Court of First Instance shall have power, on any such application as is mentioned in section 75, by order to make such provision for obtaining evidence in Hong Kong as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court considers appropriate for that purpose. (2)     Without prejudice to the generality of subsection (1) but subject to this section, an order under this section may, in particular, make provision- (a)     for the examination of witnesses, either orally or in writing; (b)     for the production of documents; (c)     for the inspection, photographing, preservation, custody or detention of any property; (d)     for the taking of samples of any property and the carrying out of any experiments on or with any property; (e)     for the medical examination of any person. (3)     An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court. (4)     An order under this section shall not require a person- (a)     to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b)     to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power. (5)   …”

24. Section 76 of the Evidence Ordinance provides a complete code governing the granting of an order under a letter of request for both documentary and oral evidence.  Notwithstanding that the Court would give every effect to judicial comity, properly construed, the provision provides a strict approach of the Hong Kong Court not to countenance “fishing expedition” recognized locally in the law of discovery as against non-party witnesses. 

25. Thus, in In re Westinghouse Uranium Contract [1978] AC 547, after reviewing the various subsections of the equivalent of section 76 of the Evidence Ordinance of the 1975 Act, Lord Wilberforce said at 609C-D as follows:

“These provisions, and especially the words ‘particular documents specified in the order’ (replacing ‘documents to be mentioned in the order’ in the Act of 1856) together with the expressed duty of the English Court to decide that the documents are or are likely to be in the possession, custody or power of the person called upon to produce, show, in my opinion, that a strict attitude is to be taken by the English courts in giving effect to foreign requests for the production of documents by non-party witnesses.  They are, in the words of Lord Goddard C.J., not to countenance ‘fishing expeditions’: Radio Corporation of Amercia v Rautland Corporation [1956] 1 QB 628, 649.” (emphasis added)

See also: 632G-636A per Lord Diplock. 

26. Further, in the US jurisdictions, there are wide powers of pre-trial discovery against non-parties to a suit.  These procedures and powers are wider than those exist in England or Hong Kong.  

27. In this regard, section 76(4) of the Evidence Ordinance (equivalent to section 2(4) of the 1975 Act) reflects the effect that the Hong Kong Courts (as the English Courts) would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents which is not recognized under the Hong Kong (and English) procedures:  In re Westinghouse Uranium Contract, supra, 608A-609C per Lord Wilberforce.

28. At the same time, section 76(3) of the Evidence Ordinance states that an order giving effect to the request “shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purpose of civil proceedings in the court making the order [i.e., the Hong Kong Court]...”.

29. This provision preserves the distinction between “direct” material immediately relevant to the issue in dispute as recognized in our law governing discovery, as to which testimony could be obtained, and “indirect” material by way of discovery, testimony for which could not be obtained:  Radio Corporation of America v Rauland Corporation [1965] 1 QB 618, 643-644 per Devlin J, as adopted by Lord Wilberforce in In re Westinghouse, supra, at 608D-G. 

30. Section 76(4) of the Evidence Ordinance further provides that an order “shall not require a person – (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power, or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power”.  (emphasis added)

31. Section 76(4)(a) of the Evidence Ordinance therefore effectively requires the foreign applicant for an order under a letter of rogatory to prove the prima facie existence of the documents requested that they are in the possession, custody or power of the person required to produce them.

32. Moreover, the words “particular documents” provided in section 76(4)(b) mean that the documentary evidence required under the letter of request needs to have the individual documents separately described.   On this, Lord Diplock in In re Westinghouse Uraniun Contract said at 635F-G as follows:

“The requirements of subsection (4)(b) [the equivalent of section 76(4)(b) of the Evidence Ordinance], however, are not in my view satisfied by the specification of classes of documents. What is called for is the specification of ‘particular documents’ which I would construe as meaning individual documents separately described.” 

33. The Hong Kong Courts have adopted the principles as set out above in its approach to give effect to a letter of request.  Thus, after reviewing a line of authorities, Woo J (as he then was) in Re Q; In Re A Letter of Request [1997] 4 HKC 439, summarized the key general governing principles at 443G-444C as follows:

“From the English authorities cited by counsel, certain key principles have evolved:

(a)     s76(4)(b) [of the Evidence Ordinance] has to be strictly construed so that the documents ordered to be produced to assist a foreign court must be ‘particular documents’ (see Westinghouse at 609C, Asbestos p 337B-e and Panayiotou p 153F) although a compendious description is allowed insofar as the documents are particularised (asee Asbestos p 337D and H and Panayiotou p 151E-F);

(b)    the particular documents must be directly material to prove issues raised bona fide and with adequate particularisation (Norway p 482D and Panayiotou p 151E-F);

(c)     it must appear to the court that the documents are in existence and they are or are likely to be in the possession, custody or power of the person ordered to produce them, as opposed to conjectural documents (see Abestos p 338B and H and Panayiotou pp 153H-154A);

(d)    no general documents can be ordered and a fishing exercise is not allowed (see Westinghouse p 609D and Norway p 482B-F); and

(e)     unless a case of bad faith is made out, the court should give effect to a letter of request as far as possible by applying a blue pencil to severely reduce the documents to be produced (Westinghouse pp 611A-B, 612A-B, 653A-E) although the court cannot substitute a different category of documents from that requested or redraft the request in different terms (Westinghouse p 636A and Norway p 494F).”

D.  The present application

34. Mr Roger Beresford  (counsel for the Applicants) submits that the Order should be set aside on any of the following grounds.

35. First, the Order concerning Mr Chen is clearly a fishing expedition and also falls foul of section 76(4) of the Evidence Ordinance:

(1)  Other than bare allegations in their affirmations filed in support of the ex parte application and in opposition to the present application, the Claimants have failed to provide any grounds to show that Mr Chen himself could have any relevant evidence to give in relation to the US Arbitration. This is underlined by the undisputed facts that:

(a)  Mr Chen is not a party to the arbitration;

(b)  none of the documents filed in the arbitration (and shown to this court) has made any reference to Mr Chen;

(c)  none of these arbitration documents makes any reference to Golden Meditech and China Medical;

(d)  none of the alleged wrongdoings committed by the Respondents as set out in the arbitration documents refers to Mr Chen, Golden Meditech, China Medical or any of the transactional activities set out in the schedules of documents ordered to be provided by the Applicants.

(2)  For the same reasons, the documents sought to be produced by Mr Chen have not been shown to be relevant evidence recognized under the Hong Kong discovery law.

(3)  Further and in any event, the documents as described and sought under the letter of request and provided in the Order are at best generalized classes of documents but not “particular documents” as required under section 76(4)(b) of the Evidence Ordinance. 

(4)  Similarly other than bare allegations, no grounds have been provided to suggest that those documents sought to be provided do or did exist and are in any event within the knowledge, control of possession of Mr Chen.  As such, the Order requiring their production is contrary to section 76(4)(a) of the Evidence Ordinance as it effectively amounts to requiring Mr Chen to state whether those documents are or have been in his possession, custody or power. 

(5)  In support of the submissions summarized at subparas (3) and (4) above, Mr Beresford further says that the sweeping use of the word “any” for the documents sought shows that they do not satisfy the “particular documents specified” test, and that the Claimants did not even know whether those documents were or have been in existence at all.  He prays in aid of Lord Fraser’s observation^[3] in In re Westinghouse, supra, at 644D-G, where his Lordship said as follows:

“A separate though related objection on the terms of many of the items in the schedule [in the letters of rogatory] is that they could not, in my opinion, receive effect under an order of the English court without contravening section 2(4) of the Act of 1975 [which is the equivalent of section 76(4) of the Evidence Ordinance].  That subsection provides as follows…

‘(4) An order under this section shall not require a person – (a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or (b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in his possession, custody or power.’

The reference to ‘any’ documents in the sweeping-up words in the schedule to the letters rogatory suggests to me that the draftsman did not know whether such documents were in existence or not.  Accordingly the words seem to be an attempt to circumvent paragraph (a) of section 2(4) of the Act of 1975, an attempt which should not be allowed to succeed.  Moreover, I think that many of the items in schedule B would be contrary to paragraph (b) of section 2(4) in respect that they call for production not of ‘particular documents specified’ but of classes or descriptions of documents.”

36. Secondly, the Order requiring Golden Meditech to provide the documents should also be set aside for the same grounds of irrelevancy and that it falls foul of section 76(4) of the Evidence Ordinance as set out above.

37. I accept Mr Beresford’s above submissions.

38. In trying to persuade to the Court not to set aside the Order, Mr William Wong (for the Claimants) asks me however to look at the present application under the following five aspects.

39. First, Mr Wong submits that the evidence sought must be looked at against the context of the allegations and causes of action in the US Arbitration, in that they involved allegations of fraud and highly complicated commercial transactions.  These (submitted Mr Wong) usually involve evidence and matters only within the knowledge and possession of the wrongdoers and related parties.   Under such context, the Court (Mr Wong further says) should therefore look at the distinction between “direct” and “indirect” relevancy of the evidence in the present case with certain degree of flexibility.

40. I reject Mr Wong’s submission:

(1)  In light of the fact that neither Mr Chen nor Golden Meditech is ever referred to in the arbitration documents concerning any of the allegations of wrongdoing transactions (which is rightly accepted by Mr Wong), I cannot see how the evidence now sought against them could be shown to be even remotely relevant to any of the allegations in the US Arbitration even if I am to apply some latitude to the test of direct relevance.

(2)  The context submission does not in my view weaken the Applicants’ submissions (which I accept) that the documents sought do not conform to the requirements under sections 76(4)(a) and (b) of the Evidence Ordinance.  They therefore should not be ordered.

41. Secondly, Mr Wong contends that the evidence sought in the Order is not to be used to strengthen the Claimants’ claims now pursued under the US Arbitration or to create any new cause of action thereunder.  In the premises, (Mr Wong further submits) it does not amount to a fishing expedition or a pre-trial discovery.

42. There is nothing in this contention.   If the evidence is not sought to strengthen the present claim in the arbitration or to seek to create any new cause of action, a fortiori it could not be shown that it is relevant (understood in Hong Kong law) to the US Arbitration.   It should therefore not be ordered.

43. Thirdly, Mr Wong says in assessing the relevancy of the evidence and documents sought, the Court should give due weight to the fact that the California Court in issuing the letters of request has come to the view that they are relevant.

44. With respect, I do not agree with the submission:

(1)  As demonstrated by the undisputed legal principles set out above, the question of relevancy of the evidence requested is one for the Hong Kong Court to decide in accordance with the relevant Hong Kong law.  Whether or not the evidence requested against a non-party could be considered relevant under the principles of discovery (and relevancy) in the jurisdiction of the requesting court is neither here not there.

(2)  In any event, there is nothing before me to suggest that it had been pointed out to the learned judge of the California Court the distinction (as recognized by the Hong Kong courts) between “direct evidence” and “indirect evidence” for the purpose of making an order under a letter of request.  I am therefore not satisfied that, when issuing the letter of request, the learned judge of the California Court had considered relevancy of the evidence requested in the context of what this Court would consider appropriate.  In the premises, even after attaching some weight (as urged by Mr Wong) to the learned judge’s decision in issuing the letter of rogatory, I do not think that it would affect in any material aspect of my above conclusion that the evidence sought has not been shown to be relevant for the purpose of deciding whether to set aside the Order or not.

45. Mr Wong further seeks to deal with the Applicants’ contention of the lack of particularity of the documents sought by suggesting certain blue-pencilling of the descriptions of the first two classes of documents set out in the relevant schedule.  It is Mr Wong’s submissions that with the blue pencilling, the documents are sufficiently particularised.  The amendments proposed by Counsel proposed are as follows:

“	1.	All documents that constitute refer or relate to any communication between Mr McCarthy (i.e., the 5th Respondent), the 1st, 2nd,3rd and/or 4th Respondents, on the one hand, and Golden Meditech on the other pertaining to the business of Golden Meditech, any security issued by Golden Meditech, including without limitation any public offering or private offering of any such security, and/or the financing of the purchase of any such security by any Respondent.
	2.	All documents that constitute refer or relate to any communication between Golden Meditech and any Respondent pertaining to the listing of any security issued by Golden Meditech on any US exchange.”

46. The Claimants do not propose any blue pencilling to paragraph 3 of the documents sought in the Order. Mr Wong says he would leave it entirely in the hands of the Court to decide whether paragraph 3 was too wide and/or too unparticularised for the present purpose.

47. Suffice for me to say that even with the blue-pencilling as suggested, these descriptions of the documents appear to me to be still too generalized and too vague, and do not amount to “particular documents” as required under section 76(4)(b) of the Evidence Ordinance.  They also do not thereby amount to compendious descriptions of several documents, as they still do not clearly identify the exact or particular documents in each case.  See In re Asbestos Insurance Coverage Cases [1985] 1 WLR 331, 337H-338C, where Lord Fraser said as follows:

“I do not think that by words ‘separately described’ by Lord Diplock [in In re Westinghouse] intended to rule out a compendious description of several documents provided that the exact document in each case is clearly indicated.  If I may borrow (and slightly amplify) the apt illustration given by Slade LJ in the present case, an order for  production of the respondents’ monthly bank statements for the year 1984 relating to his current account’ with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession.  But a general request for ‘all the respondent’s bank statements for 1984’ would in my view refer to a class of documents and would not be admissible.”

48. In any event, I am not satisfied that the proposed blue pencilling would answer the criticism that that it has not been shown that the documents sought in such a wide term bear any relevancy to the US Arbitration, when none of Mr Chen, China Meditech, China Medical and any of the transactions said to be related to the documents were referred to or formed part of the subject matter of disputes in the foreign proceedings. 

49. Fourthly, insofar as to the proof of prima facie possession by Mr Chen of the documents sought is concerned, Mr Wong asks me to consider it under:

(1)  The recent evidence filed by the Claimants just before this hearing that there had been certain email communications between Mr McCarthy on the one hand, and respectively (a) one Ms Liu of one of the Respondents’ co-manager or sub-manager, and (b) Mr Chen;

(2)  The nature of the trading between the parties, and 

(3)  The fact that the judge of the California Court was satisfied that Mr Chen had prima facie possession of these documents.

50. I am not persuaded by these submissions:

(1)  The recent evidence:

(a)  only shows that Mr McCarthy had been communicating with Ms Liu (not of the Respondents but the Respondents’ co-manager) about information concerning Golden Meditech.  I do not regard this as sufficient evidence proving that there is prima facie existence of those communications recorded in any of the documents concerning any of the transactions set out in the schedule of documents attached to the letter of rogatory.

(b)  shows that there was an email communication dated 26 September 2005 between Mr McCarthy and Mr Chen asking Mr Chen to ask Golden Meditech’s Chief Executive Officer for information regarding certain financial projections for the company for the fiscal year ending next spring.  This in my view is far from sufficient evidence again to show prima facie existence of those wide-sweeping communications recorded in any of the documents concerning any of the generalized transactions as set out in the schedule of documents attached to the letter of rogatory

(2)  I could not find anything in the nature of the alleged trading between the parties that would demonstrate the prima facie existence of these documents as suggested by Mr Wong.  Even if the Respondents had been trading shares of Golden Meditech (which has not been alleged or mentioned in the arbitration documents) in a wrongful way similar to those other transactions which are alleged in the arbitration, it does not show that prima facie there should be those documents in existence. 

(3)  There is nothing to show on what additional basis (other than the evidence already before me) that the learned judge of the California judge came to the conclusion that Mr Chen should have in his possession these documents.  One must bear in mind that it is not suggested that the requirement under section 76(4)(a) of the Evidence Ordinance was equally applicable under the Californian law, or was brought to his attention when the learned judge considered whether Mr Chen had the requisite possession of these documents.  In the circumstances, I do not think for my purpose of considering whether the request for documents sought satisfies section 76(4)(a) of the Evidence Ordinance, any material weight should be given to the learned judge’s apparent conclusion in the letter of rogatory.  Alternatively, even if any weight is to be attached, I do not think it would affect my above conclusion that section 76(4)(a) is not satisfied.

51. Finally, Mr Wong invites me to consider the request for evidence in light of the administration of justice but not with playing a game of snakes and ladders.

52. In my view, as demonstrated by the authorities cited above, the submissions made by the Applicants in seeking to set aside the Order are premised on and for the purpose of due administration of justice under the relevant Hong Kong law and section 76 of the Evidence Ordinance in relation to the grant of an order under a letter of request.  The law seeks to strike a balance between judicial comity and the rights of a non-party in discovery as recognized by Hong Kong law.    I do not find the Applicants’ grounds of objections “playing a game of snakes and ladders”.

53. I therefore also reject Mr Wong’s above submissions.

E.      Conclusion

54. For the above reasons, I am not satisfied that the Claimants have shown to me that (a) Mr Chen is in a position to give any evidence relevant to US Arbitration, (b) the prima facie existence of the documents sought and that Mr Chen and Golden Meditech are in prima facie possession of them, as required under section 76(4)(a) of the Evidence Ordinance, (c) the documents sought against Mr Chen and Golden Meditech are relevant to the US Arbitration and/or amount to “particular document” as required under section 76(4)(b) of the Evidence Ordinance.

55. I therefore allow the Applicants’ application and set aside the Order on one or all of the above grounds.

56. There is no reason why costs should not follow the events.  I further make an Order nisi that costs of this application be to the Applicants to be taxed if not agreed.  Unless any of the parties applies by Summons to vary it, the costs order nisi shall be made absolute 14 days from today.

57. It remains for me to thank counsel for their assistance in this matter.

Mr. William M.F. WONG and Mr. John K.C. HUI, instructed by Messrs Bryan Cave   for 1^st to 5^th Claimants.

Mr. Roger G. BERESFORD, instructed by Messrs Jones Day for the Applicants  

[1] By Summons dated 16 December 2008.

[2] For the present purpose, this could be treated as equivalent to the Claimants’ pleading in the US Arbitration in stating their case against the Respondents.

[3] Lord Fraser was the dissenting Law Lord in In re Westinghouse.  But I agree with Mr Beresford’s submissions that Lord Fraser’s dissenting judgment does not turn on this observation.  In any event, this observation was referred to and incorporated by Lord Fraser in his leading speech (where all the other Law Lords agreed) in In re Asbestos Insurance [1985] 1 WLR 331 at 339B-D.