Willwin Development (Asia) Co Ltd v. Wei Xing and Others

HCA 797/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 797 OF 2012

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BETWEEN

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DECISION

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I.  INTRODUCTION

1.This is an application by the 2^nd and 3^rd defendants (“D2 and D3”) requiring the plaintiff to give further and better particulars (“FBP”) of the Statement of Claim (“SOC”) as per the requests (“Requests”) annexed to their summons dated 30 November 2012 (“Summons”). Such Requests (which number 40 in total) were initially raised by letter dated 1 September 2012 from the solicitors for D2 and D3 to the solicitors for the plaintiff.

2.At the hearing of the Summons on 7 February 2013 (“Hearing”), Mr Ho, counsel for D2 and D3, abandoned some of the Requests and conceded that the costs of and occasioned by such abandoned requests be to the plaintiff, so I granted leave for D2 and D3 to withdraw Requests Nos.1-5, 7, 13-16, 17(1) and (3), 21-23, 25-27, 31-34 and 36-40 under paragraph 1 of the Summons.  In the course of his oral submissions, Mr Ho also abandoned Request No.35 insofar as it relates to D1.

3.At the Hearing, Mr Poon, counsel for the plaintiff, conceded that the plaintiff should furnish the FBP requested under Request No.17(4). In the circumstances, the outstanding requests for FBP are Requests Nos.6, 8-12, 17(2), 18-20, 24 and 28-30 and Request No.35 insofar as it relates to D3 (“Remaining Requests”).

4.But before I discuss the Remaining Requests, it is necessary to briefly set out (a) the nature of the plaintiff’s claim against D2 and D3 and (b) the history of the proceedings in order to place the Remaining Requests in context.

II.  SOC

5.The plaintiff’s case as pleaded in the SOC is summarised in paragraphs 6-17 below.

6.The plaintiff, a Hong Kong company, was “engaged in the sale and/or provision of auto test system, test fixture, test equipment and test instruments for electronic and computer hardware products and the supply of related technical services to clients who are primarily outside of Mainland China” (“Plaintiff’s Business”).

7.Shenzhen Willwin Technology Company Limited (“SWT”) was/is a PRC company that carried on a business in Shenzhen, PRC similar to the Plaintiff’s Business, but with a clientele that was largely PRC-based.

8.The 1^st defendant (“D1”) and his younger brother Wei Wen were respectively 30% and 70% shareholders of the plaintiff. D1 was/is the deputy general manager of and a paid director employed by the plaintiff, and before 2 December 2011 he was SWT’s general manager.

9.D2, a Hong Kong company, carried on a business identical to and in direct competition with that of the plaintiff. D3, the wife of D1, was a paid director employed by the plaintiff, and before 2 December 2011 an assistant to SWT’s general manager. She was/is the founder, 100% shareholder and director of D2.

10.The role of the plaintiff (whose clients were mainly non-PRC based companies) was to have their clients’ consumer products adequately tested before the release of such products to the general public. The plaintiff would invariably sub-contract the testing and/or utilise SWT’s resources and manpower to carry out the relevant procedures at SWT’s factory in Shenzhen, PRC. In the course of carrying out such work, the plaintiff would often have to be furnished with market-sensitive, highly confidential and non-public information (“Clients’ Confidential Information”), so the plaintiff and/or SWT often had to enter into confidentiality agreements to prevent the Clients’ Confidential Information from being divulged to their competitors or the public.

11.The plaintiff was also the owner or beneficially entitled to possess/deal with certain confidential information in the course of their business, ie the identities and contact information of their existing and prospective clients (“List of Clients”), the identities and contact information of their existing and prospective suppliers (“List of Suppliers”), and all information relating to their own technical operations and test procedures (“Technical Confidential Information”).

12.The four classes of confidential information referred to in paragraphs 10-11 above are referred to as the “Plaintiff’s Confidential Information”.

13.Since 2004, the plaintiff entrusted D1 as director and deputy general manager to manage and administer their business and operations, and D3 was similarly appointed as their director, so both D1 and D3 owed fiduciary duties to the plaintiff. Further or alternatively, as paid employees they also owed to the plaintiff equitable and/or contractual duty of fidelity to act faithfully in the best interest of the plaintiff. By the end of 2011, D3 ceased to be a director of the plaintiff, but she continues to owe inter alia a duty not to divert business opportunities from the plaintiff.

14.Moreover, since D1 and D3 were all along privy to and/or apprised of the Plaintiff’s Confidential Information in the course of carrying out their respective powers, duties and responsibilities, they were under a duty of confidence towards the plaintiff in respect of the Plaintiff’s Confidential Information. In this connection, SWT required all its officers/staff (including D1 and D3) to enter into separate standard-form confidentiality agreements (“SWT’s Confidentiality Agreements”) to protect inter alia the Plaintiff’s Confidential Information. But some time after D1 and D3 executed their respective SWT’s Confidentiality Agreement, they removed the same or caused the same to be removed from SWT. Given the close business relationship between SWT and the plaintiff, the duty of confidence owed to the plaintiff by D1 and D3 was contained or reflected in the terms of their respective SWT’s Confidentiality Agreement.

15.In/about September 2011, D1 and/or D3 acquired D2 as their corporate vehicle to carry on a business identical and in direct competition with the plaintiff. In/about December 2011, Shenzhen Evolution Solution Limited (“Shenzhen Evolution”) was incorporated in the PRC, and D1 was/is the general manager and D3 was/is an officer at the general manager’s office of Shenzhen Evolution. Thus, D1 and/or D3 replicated the business modus operendi established/adopted by the plaintiff and SWT. In advancing and/or carrying on D2’s business, D1 and/or D3 committed wrongful acts in breach of their fiduciary duty and their duty of fidelity owed to the plaintiff. The plaintiff claims they have suffered loss and damage, and is entitled to an account of profits reaped by D1 and/or D3 or an enquiry as to damages. The plaintiff also seeks to restrain D1 and/or D3 from committing any further wrongful acts.

16.Further, due to the specialised, complex and highly technical nature of the Plaintiff’s Business, D2 could not have carried on their business unless D1 and/or D3 wrongfully disclosed to D2 and/or misused the Plaintiff’s Confidential Information. The plaintiff therefore invites an inference to be drawn to the effect that D1 and/or D3 have breached their respective duty of confidence owed to the plaintiff by divulging the Plaintiff’s Confidential Information to D2. Further, in receiving or coming into knowledge and possession of the Plaintiff’s Confidential Information as a result of the wrongful breaches by D1 and/or D3, a similar duty of confidence was imposed on D2, but D2 was in breach of such duty in the course of carrying on their business. The plaintiff claims they have suffered loss and damage as a result of the breach of confidence by the defendants. Further or alternatively, the plaintiff is entitled to an account of profits made by the defendants through the disclosure and/or misuse of the Plaintiff’s Confidential Information, or an enquiry as to damages. The plaintiff also seeks to restrain the defendants from committing any further wrongful acts.

17.The plaintiff also pleads further causes of action based on dishonest assistance, passing off, and misappropriation of their funds and receivables. In respect of the latter cause of action, the plaintiff claims that between April 2008 and March 2011, D1 and D3 withdrew or caused to be withdrawn and received cash sums of HK$8,106,000.00 and US$349,960.00 from the plaintiff’s bank accounts. Despite the plaintiff’s repeated requests, D1 and D3 did not account for, repay to the plaintiff and/or explain the purpose(s) and/or the current whereabouts of such withdrawals. The plaintiff claims for repayment of such sums. Further or alternatively, the plaintiff claims that D1 and D3 have wrongfully deprived them of the use/possession of such sums and converted them to their own use, and they have thereby suffered loss and damage.

III.  PROCEEDINGS

18.On 14 May 2012, the plaintiff commenced the present action against D1 and D2. On the same day, on the strength of the 1^st affirmation of Wei Wen filed 14 May 21012 (and supplemented by his 2^nd affirmation filed on 15 May 2012), the plaintiff obtained Anton Piller and injunction orders against D1 and D2. Such orders were continued on 18 May 2012. On 12 June 2012, D1 and D2 applied to discharge those orders, and D1’s 1^st affirmation was filed on 7 June 2012 in support of such application.  On 29 June 2012, the plaintiff filed the 3^rd affirmation of Wei Wen in opposition. On 9 July 2012, D1 and D2 filed D1’s 2^nd affirmation in reply. On 12 July 2012, the application for discharge of the Anton Piller and injunction orders was dismissed. Those orders were slightly varied, and an order for speedy trial was made.

19.In the meantime on 13 June 2012, the plaintiff applied to join D3 as a further defendant in this action. D3 was so joined on 22 June 2012. On 6 July 2012, the plaintiff filed and served their Amended Writ of Summons and Statement of Claim.

20.There was disagreement amongst the parties over (a) whether there had been compliance with the injunction orders (eg order requiring D1 and D2 to deliver up the usernames and passwords of the domain name “willwin.hk” as well as the email accounts thereunder) and (b) the appropriate directions for speedy trial.

21.On 26 July 2012, D1 and D2 applied for leave to appeal against the dismissal of their application to discharge of the Anton Piller and injunction orders, but they have not followed up on such application to date. On the following day (ie 27 July 2012), D1 filed a Notice to Act in Person and applied for legal aid. Although such application was eventually rejected, the 42-day legal aid automatic stay was maintained. Consequently, the hearing for speedy trial directions on 30 July 2012 did not proceed. On 1 September 2012, D3 filed her acknowledgment of service. On the same day during the legal aid stay but before D2 and D3 filed their Defence, their solicitors wrote to the solicitors for the plaintiff to make the Requests.

22.On 10 and 12 September 2012, the defendants applied to strike out the plaintiff’s claim for want of authority to sue. On 21 September 2012, interim Mareva relief was granted in favour of the plaintiff. On 3 October 2012, D1’s present solicitors filed Notice to Act on his behalf. On 15 October 2012, the interim Mareva injunction order was set aside, and the defendants’ striking out applications were adjourned. In late October 2012, the striking out applications became academic when the plaintiff ratified the present proceedings. On 27 November 2012, the parties jointly wrote to the court to seek speedy trial directions with the defendants indicating their intention to apply for security for costs and for costs of the striking out applications, but without any mention that the Requests would be pursued. The speedy trial directions made on 29 November 2012 therefore made no mention of the Requests.

23.On the following day (ie 30 November 2012), D2 and D3 issued the Summons. On 20 December 2012, D1 as well as D2 and D3 filed his/their respective Defence. On 23 January 2013, the plaintiff filed their Replies thereto.

IV.  LEGAL PRINCIPLES

24.Order 18 rule 12 of the Rules of the High Court (“RHC”) provides as follows:

“(1) Subject to paragraph (2), every pleading must contain the necessary particulars of any claim …… or other matter pleaded ……

(3) The Court may order a party to serve on any other party particulars of any claim, …… or other matter stated in his pleading …… or a statement of the nature of the case on which he relies, and the order may be made on such terms as the Court thinks just. ……

(3B) No order shall be made under paragraph (3) unless the Court is of the opinion that the order is necessary either for disposing fairly of the cause or matter or for saving costs. ……”

25.There is no dispute that (a) pleadings must contain material facts and not evidence, (b) material facts are those facts which must be proved in order to establish a ground of claim or defence, (c) all necessary particulars of the material facts must be pleaded, and (d) the court will not order FBP of a pleading where the particulars sought constitute evidence.

26.There is also no dispute that the function of particulars is as follows: (a) to inform the other side of the nature of the case that he has to meet as distinguished from the mode in which the case is to be proved, (b) to prevent the other side from being taken by surprise at the trial, (c) to enable the other side to know with what evidence he ought to be prepared and to prepare for trial, (d) to limit the generality of the pleadings, the claim and the evidence, (e) to limit and define the issues to be tried, and as to which discovery is required, and (f) to tie the hands of the party so that he cannot without leave go into any matters not included (see Hong Kong Civil Procedure 2013 Vol.1 para.18/12/1 at p.394 and Aktieselskabet Dansk Skibsfinansiering v Wheelock Marden & Co Ltd & ors [1994] 2 HKC 264, 269-270, per Bokhary JA (as he then was)).

27.In a nutshell, the purpose of FBP is to permit the parties to understand the case they have to meet at trial so as to remove the element of surprise. But the particularity of what is required from the pleader depends on the facts of each case. The modern approach is stated in McPhilemy v Times Newspapers Ltd & ors [1999] 3 All ER 775 as follows: the current practice of requiring witness statements, expert reports and so forth to be exchanged should reduce the need for FBP to clarify pleadings, and as long as the pleadings do convey the nature of the party’s case and state the material facts, they should not attract applications for FBP even though some details that are likely to come forth in discovery or witness statements are not disclosed.

28.In my view, Lord Woolf’s remarks at p.793, which were given in the context of the English Civil Procedure Rules, are equally applicable to the current practice here:

“As well as their expense, excessive particulars can achieve directly the opposite result from that which is intended. They can obscure the issues rather than providing clarification. In addition, after disclosure and the exchange of witness statements, pleadings frequently become only of historic interest. …… the case is overburdened with particulars and simpler and shorter statements of case would have been sufficient. Unless there is some obvious purpose to be served by fighting over the precise terms of a pleading, contests over their terms are to be discouraged. In this case the distinct impression was given by the parties that both sides were engaged in a battle of tactics. Each side was seeking to fight the action on, what from that party’s perspective appeared to be, the most favourable ground. The dispute over particulars was just being used as a vehicle for that purpose …… The judiciary had been exhorting proportionality whenever an appropriate opportunity to do so arose. ……”

29.Such approach is also reflected in Midland Realty International Ltd v Wise Surplus Ltd [2002] 3 HKC 318. DHCJ Gill considered that the FBP sought by the defence were a matter of evidence to be proved at the trial. A representative of the plaintiff, with full knowledge of the history of the dispute, would give evidence and had filed a comprehensive witness statement which set out in some detail the evidence upon which the plaintiff intended to rely. The learned judge decided that it would be wrong to require this to be incorporated into the pleadings, even in gist.

30.Further, as Mr Poon submits, the court will not order particulars of any immaterial allegation (see Hong Kong Civil Procedure 2013 Vol.1 para.18/12/62 at p.405). It must also be remembered that Order 18 rule 12(3B) of the RHC, which was introduced by the Civil Justice Reform, provides that no order for FBP shall be made unless it is “necessary” either for disposing fairly of the cause or matter, or for saving costs. Hong Kong Civil Procedure 2013 Vol.1 para.18/12/66 at p.406 provides as follows:

“ Where application is made by the parties themselves, it is for the party applying for the order to satisfy the Court that the order is necessary either for disposing fairly of the cause or matter, or for saving costs. Unless the Court makes the order of its own motion, the burden and onus of so proving rests upon the party bringing such application.

It is not enough for the applicant merely to show that the particulars requested are “relevant”; for “relevance” is not the test proscribed – it must be shown that granting an order for those particulars is “necessary” for one or more of the purposes stated and set out in para.(3B), which provides for an exhaustive and conclusive definition of what can be (and only those can be) considered by the Court to be “necessary” (namely, only for disposing fairly of the cause or matter, or for saving costs).”

31.I now apply the above principles to the Remaining Requests.

V.  D2’S AND D3’S CASE

32.D2 and D3 contend that the plaintiff has failed to furnish full and sufficient FBP in respect of their broad and general pleaded allegations which are therefore unsatisfactory and embarrassing, so the Remaining Requests are necessary for disposing fairly of the cause or matter.

VI.  PLAINTIFF’S CASE

33.On a preliminary basis, the plaintiff disputes the Remaining Requests on the following broad grounds:

(a)        D2 and D3 have failed to discharge their burden in establishing that the Remaining Requests are necessary either for fairly disposing of the cause or matter, or for saving costs.

(b)        The Summons lacks bona fides and represents yet another satellite skirmish on the part of D2 and D3 to disrupt the present action and to delay the resolution of the real disputes between the parties.

34.In respect of the issue in paragraph 33(a) above, Mr Poon submits that in view of the history of the proceedings in this action (see paragraphs 18-23 above) D2 and D3 must have been fully apprised of the nature and scope of the plaintiff’s case. Mr Poon argues that since the present action began with ex parte Anton Piller and injunction orders, which have been continued on 18 May 2012 and not discharged on 12 July 2012, the plaintiff must have complied with the duty to make full and frank disclosure of their case in their supporting affirmations. Mr Ho accepts that even though D3 only joined as a co-defendant at a later stage of the proceedings, she had access to the affirmations filed by the plaintiff in support of the Anton Piller and injunction orders. In the circumstances, Mr Poon submits that D2 and D3 are fully aware of the details of (a) the plaintiff’s causes of action against the defendants based on breach of fiduciary duty, breach of confidence and passing off as disclosed in the course of the application for and continuation of the Anton Piller and injunction orders, and (b) the plaintiff’s causes of action against D1 and D3 based on misappropriation of funds and/or failure to account for the whereabouts of such funds as disclosed in the course of the plaintiff’s application for Mareva relief against them. Mr Poon therefore says that D2 (and D3 who is D2’s sole shareholder and director) cannot be heard to say they have difficulty in understanding the plaintiff’s claims, especially when they were able to prepare detailed affirmations with supporting documents for the aforesaid interlocutory applications and to prepare a full-bodied Defence to the SOC.

35.However, I am not prepared to deal with the question of “necessity” of the Remaining Requests on a broad-brush basis premised on Mr Poon’s general observation that the SOC was preceded by disclosure on affirmations made (a) for the purpose of seeking the Anton Pillar and injunction orders and the Mareva relief and (b) for resisting the discharge of such orders. The existence of such affirmations does not ipso facto dispense with any need for FBP of the plaintiff’s pleadings.  In my view, each Request must be considered in the context of the current progress of the proceedings and the present information as known to the parties to see whether it is necessary for the purpose of disposing fairly of the cause or matter or for saving costs.

36.In respect of the issue in paragraph 33(b) above, Mr Poon submits that the Summons is the latest of a series of delaying tactics on the part of the defendants that disrupt speedy progress of the proceedings.  But I am not persuaded that the history of the present proceedings necessarily indicates the Summons lack bona fides.  Whilst parties may disagree over whether there has been compliance with the order for the delivery up of usernames and passwords, such disagreement has no bearing on whether the plaintiff ought to give FBP to clarify their pleadings.  Likewise, the failure by D1 and D2 to pursue their application for leave to appeal against the dismissal of their application to discharge the Anton Piller and injunction orders has not caused any delay to the progress of this action. It will be noted that although D2 and D3 had not filed their Defence when they first raised the Requests, such Defence had been filed by the time of the Hearing, and there is no suggestion that D2 and D3 have attempted to defer service of their Defence pending the provision of the FBP sought. I also cannot see how D2 and D3 can be blamed for any hiatus in the proceedings caused by D1’s application for legal aid. Further, without the benefit of full argument, it is questionable whether D2 and D3 should be faulted for their striking out application when ultimately it was the plaintiff who overcame such application by ratifying the proceedings.

37.I am not prepared to throw out the Remaining Requests on a broad-brush basis that there been delay in the proceedings. Whilst it is of course more desirable if this action had progressed more quickly in view of the order for speedy trial, I am not persuaded on the material before me that D2 and D3 are largely to blame.

38.In his written submissions, Mr Poon also argues that because the present action involves the plaintiff company claiming against D1 (a director), D3 (an ex-director) and D2 (a company which is effectively the alter ego of D1 and D3) primarily for their diversion of business opportunities and their parallel business in direct competition with the plaintiff, the plaintiff will not know the true nature and extent of their wrongful acts until proper discovery is given by the defendants. So if the court should find that all or some of the plaintiff’s pleaded allegations being the subject of the Remaining Requests are so “broad and general” that FBP ought to be furnished, Mr Poon says the court should take into account the fact that D2 and D3 have not made full discovery of documents as yet and should only require the plaintiff to furnish any necessary FBP “at a reasonable period of time after the discovery stage”.

39.In my view, if it is considered that the plaintiff should give FBP of their pleas in the SOC (which the plaintiff denies), then the provision of such FBP should not be deferred in the manner as suggested by Mr Poon. As explained in Hong Kong Civil Procedure 2013 Vol.1 para.18/12/63 at p.405,

“…… The party from whom particulars are sought often declares that he cannot give any further information, or that he cannot do so without laborious research or exhaustive inquiry. Such objections, if genuine, are often met by an order that he shall deliver forthwith the best particulars which he can at present give, with liberty to supplement them within a specified period after discovery and inspection has been completed.”

In the course of his oral submissions at the Hearing, Mr Poon conceded that the plaintiff would not rely on this argument.

40.I now turn to the individual Remaining Requests to see if FBP ought to be ordered.

VII.  REQUESTS NOS. 6 AND 17(2)

41.It is pleaded in paragraph 5(b) of the SOC that D3 was a paid director under the employment of the plaintiff. Request No.6 seeks FBP as to whether there was a contract of employment between the plaintiff and D3, and if so, whether it was made orally or in writing with full particulars of the oral contract or with provision of a copy of the written contract. D2 and D3 also seek full particulars of “the material facts upon which the [plaintiff] seeks to establish that [D3] is a paid director of the [plaintiff], including but not limited to the wages and/or benefit allegedly paid or made to [D3] from the incorporation of the [plaintiff] to December 2011”, and as to when and how D3’s directorship was terminated.

42.Paragraph 18 of the SOC pleads that further or alternatively, D1 and D3 as paid employees of the plaintiff also owed the plaintiff an equitable and/or contractual duty of fidelity to act faithfully in the best interests of the plaintiff. Request No.17(2) seeks full particulars of the alleged equitable duty of fidelity owed by D3 to the plaintiff.

43.Mr Ho submits that Request No.6 is relevant and necessary in that (a) the scope and terms of the contract of employment between the plaintiff and D3 are material for ascertaining the scope of her alleged contractual duty of fidelity, and (b) D3 is entitled to know when her directorship with the plaintiff was terminated.

44.However, in paragraph 6(1) of the Defence by D2 and D3 (“Defence”), they admit that D3 was a director of the plaintiff and paid since 2008. There is therefore no issue or dispute that D3 was a director of the plaintiff and that she was under the plaintiff’s employment. Since there is no live issue or dispute arising from the matters pleaded in paragraph 5(b) of the SOC, it is plainly unnecessary for the plaintiff to give the FBP sought under Request No.6. Such request certainly will not save costs, and they are not necessary for disposing fairly of the cause or matter.

45.As for Request No.17, Mr Poon conceded that the plaintiff ought to provide the FBP sought under Request No.17(4) in relation to the alleged contractual duty of fidelity owed by D3 to the plaintiff. But in respect of Request No.17(2), I cannot see what FBP the plaintiff can give in respect of the alleged equitable duty of fidelity that (as Mr Poon submits) arises as a matter of equity (which plainly is a matter of law rather than fact) from the admitted employment relationship between the plaintiff and D3. Pursuant to Order 18 rule 18(11) of the RHC, points of law may (not must) be pleaded. In any event, paragraph 18 of the SOC has spelled out the nature of such alleged equitable duty of fidelity, which is a duty to act faithfully in the best interests of the plaintiff. In this respect, D2 and D3 should be aware of the plaintiff’s case that they have to meet.

46.Requests Nos.6 and 17(2) are therefore dismissed.

VIII.  REQUEST NO.8

47.Request No.8 is aimed at paragraph 7 of the SOC which pleads that a list of the “Plaintiff’s Clients” is appended therein and marked as “Annexure A”. In the SOC, “Plaintiff’s Clients” is defined in paragraph 6 which avers inter alia that the plaintiff’s clients consist primarily of overseas and/or multi-national corporations engaging in the sale and provision of electronic consumer products. Annexure A of the SOC lists 54 companies said to the “Plaintiff’s Clients”.

48.Request No.8 seeks FBP as to whether there is any contract for the alleged provision of service by the plaintiff and/or any contract of sale made between the plaintiff and each of the alleged “Plaintiff’s Clients”, and if so, whether such contracts were made orally or in writing with full particulars of the oral contracts or with provision of copies of the written contracts.

49.D2 and D3 deny the allegations in paragraph 7 of the SOC by paragraph 7 of the Defence, and insofar as may be necessary they aver that the alleged Plaintiff’s Clients (and the list of alleged Plaintiff’s Clients in Annexure A of the SOC) are in fact SWT’s clients.

50.Mr Ho submits that the listing of 54 companies in Annexure A of the SOC as the “Plaintiff’s Clients” “is a most general plea, and is not supported by any particulars”, hence the plaintiff must provide FBP to “establish that those entities are in fact their clients as alleged” “in order to limit the generality of the pleadings and the evidence”. Mr Ho says that the companies specified in items 8 and 9 of Annexure A of the SOC were in fact suppliers and not clients, which illustrates why it is necessary to seek FBP of the plaintiff’s plea that the companies listed in Annexure A of the SOC are their clients. Mr Ho claims that without such FBP, D2 and D3 can only plead a bare denial and will not be able to raise any positive defence case.

51.In my view, Request No.8 is misconceived. Paragraph 7 of the SOC lists 54 companies which the plaintiff avers are their clients. This is the only material fact pleaded in paragraph 7 of the SOC, which does not go further to assert how and why these companies became the plaintiff’s clients. Rather, it is in paragraph 6 of the SOC that the plaintiff describes the domicile (ie overseas and/or multi-national corporations) and business (ie engaging in the sale and provision of electronic consumer products) of their primary clients. The averment in paragraph 7 of the SOC and Annexure A of the SOC are in fact the “particulars” provided in respect of the plea in paragraph 6 of the SOC.

52.In my view, FBP under Order 18 rule 12 of the RHC must be particulars of averments pleaded in the subject pleading which is quite different from general information about the pleader’s case which the applicant may wish to know. In appropriate cases, the latter may come within the ambit of interrogatories that can be administered under Order 26 of the RHC, but it cannot be made the subject of requests for FBP which are confined to particulars of the pleaded averments. For Request No.8, nowhere can I find any plea in paragraphs 6-7 of the SOC about any contract for the provision of services by the plaintiff and/or any contract of sale made between the plaintiff and each of the 54 companies listed in Annexure A to the SOC. They cannot be made the subject of a request for FBP of paragraph 7 of the SOC.

53.The above-stated fallacy on the part of D2 and D3 is highlighted by Mr Ho’s submissions that they require the contract details between the plaintiff and each of the 54 companies listed in Annexure A of the SOC because (a) the plaintiff regards such contract details as confidential information and (b) it is evident from the Amended Indorsement of Claim (“AIOC”) that the plaintiff rests their claim on such confidential information. In my view, this at best reflects what D2 and D3 would like to know about the plaintiff’s case rather than a need for proper clarification of what has been pleaded in paragraph 7 of the SOC.

54.But in any event, I do not agree with Mr Ho’s submissions. By paragraph 3 of the AIOC, the plaintiff seeks injunctive relief to restrain the defendants from soliciting, entering into, performing or continuing to perform any contract with the plaintiff’s clients for the sale and/or provision of auto test system, text fixture, test equipment, test instruments for electronic and computer hardware products and the supply of related technical services. “Contract” in this pleaded prayer of relief in the AIOC necessarily means a contract between the defendants and a client of the plaintiff, and not a contract between the plaintiff and their client. I do not see how business contracts between the Plaintiff’s Clients and the defendants can be (a) confidential information pleaded in paragraph 5 of the AIOC or (b) the Clients’ Confidential Information and/or the Plaintiff’s Confidential Information as pleaded in paragraphs 9 and 11 of the SOC.

55.Further, Request No.8 is not circumscribed at all, which means that the plaintiff is required to disclose the particulars sought for every single business contract made by the plaintiff with each of the 54 companies listed in Annexure A of the SOC for the period from 2004 (ie when the plaintiff was incorporated) to date. The scale and volume of information envisaged by such request can hardly be said to facilitate the saving of costs. Even if such request reasonably arises from the plea in paragraph 7 of the SOC (which I disagree), the FBP sought are at best evidence and not particulars. On any count, Request No.8 should be dismissed, and I so dismiss such request.

IX.  REQUEST NO.9

56.Paragraph 8 of the SOC pleads that “[upon] contracting to sell and/or to provide products and services to the Plaintiff’s Clients, the Plaintiff would invariably sub-contract out and/or utilise the resources and manpower of SWT to carry out such production and/or testing procedures in SWT’s factory in Shenzhen, PRC”.

57.By Request No.9, D2 and D3 seek full particulars of the plea that the plaintiff would invariably sub-contract out and/or utilise the resources and manpower of SWT to carry out such production and/or testing procedures in SWT’s factory in Shenzhen, PRC, including whether there is any contract for each and every alleged sub-contracting and/or utilisation of the resources and manpower of SWT, and if so, whether such contracts were made orally or in writing with full particulars of the oral contracts or with provision of copies of the written contracts.

58.By paragraph 8 of the Defence, D2 and D3 deny the averments in paragraph 8 of the SOC (including any subcontracting relationship between the plaintiff and SWT as alleged), and go on to plead that the plaintiff is a mere shell with no staff, plant, facilities, equipment and/or place of business. D2 and D3 aver that the plaintiff was merely set up to issue invoices to SWT’s overseas customers who wish to avoid paying VAT.

59.Mr Ho submits that the allegation in paragraph 8 of the SOC contradicts the plea in paragraph 2 of the SOC that SWT carries on a business in Shenzhen, PRC “similar to” the plaintiff’s business but with a clientele that is largely PRC-based, so the FBP sought are required to enable D2 and D3 to understand the plaintiff’s case.

60.I do not agree with Mr Ho’s submissions. The fact that the plaintiff and SWT are two different companies each with their own business which are similar in nature but serving different clientele (ie PRC based and non-PRC based clients) does not ipso facto preclude any business arrangement whereby SWT’s factory in Shenzhen, PRC also handles sub-contract work from the plaintiff or provides resources and manpower for the plaintiff to perform their contracts with the Plaintiff’s Clients. I am unable to appreciate the inherent contradiction in the SOC as suggested by Mr Ho.

61.Mr Ho next says that the business of the plaintiff cannot be similar to that of SWT if the plaintiff invariably sub-contracts their work to SWT. I do not agree. On the plaintiff’s pleaded case, their sub-contracting relates to work required to be performed by them under their own business contracts with the Plaintiff’s Clients. Such sub-contracting does not alter the contractual or business relationship between the plaintiff and the Plaintiff’s Clients whereby the plaintiff sells and/or provides “auto test system, test fixture, test equipment and test instruments for electronic and computer hardware products and the supply of related technical services” to the Plaintiff’s Clients, which business is therefore “similar to” SWT’s business with their clients save and except that the Plaintiff’s Clients “are primarily outside of Mainland China” and SWT’s clients are mainly PRC-based.

62.Mr Ho further submits that in any event D2 and D3 are entitled to FBP in relation to the sub-contracting arrangements and the arrangements for utilising the resources and manpower of SWT since these matters go to the heart of the dispute between the parties, ie the nature of the relationship between the plaintiff and SWT.

63.In my view, the plaintiff has pleaded the material facts of the business relationship between the plaintiff and SWT in paragraph 8 of the SOC, ie that once the plaintiff makes a contract to sell and/or to provide products and services to their client they would sub-contract out and/or utilise the resources and manpower of SWT to carry out production and/or testing procedures in SWT’s factory in Shenzhen, PRC. To go further to ask for particulars of each and every contract between the plaintiff and SWT for any and all sub-contracting by the plaintiff to SWT and for any and all utilisation of SWT’s resources and manpower from 2004 to date is plainly objectionable not only because they are matters of evidence and not material facts, but also because of the scale and volume of information envisaged to be sought. In my view, Request No.9 does not facilitate the saving of costs, and it is not necessary for disposing fairly of the cause or matter.

64.Although I agree that affirmation evidence is not necessarily or always a substitute for FBP, the above analysis, the more detailed description of the business relationship between the plaintiff and SWT in paragraphs 4(9)-(11) of the 1^st affirmation of Wei Wen, and the sample dealings disclosed in paragraph 24 and exhibit “WW-8” to such affirmation go a long way to show that Request No.9 is not necessary at this stage of the proceedings before discovery and witness statements.

65.Request No.9 is therefore dismissed.

X.  REQUEST NOS.10 AND 12

66.Paragraph 9 of the SOC pleads as follows:

“In the course of undertaking and carrying out each order, project or testing procedures for the Plaintiff’s Clients, the Plaintiff often have to be furnished with market-sensitive, highly confidential and non-public information by the relevant client which includes but are not limited to product plans, designs, requirements, specifications, costs, prices, names, finances, marketing plans, business opportunities, forecasts, orders, trade arrangements, personnel, customer information, research, development, know-how, third party confidential information and all other information conveyed by the relevant client which is incidental and/or necessary for the Plaintiff to perform each order, project or testing procedures (collectively referred to as “Clients’ Confidential Information”).”

67.By Request No.10, D2 and D3 seek full particulars of the alleged “Clients’ Confidential Information” allegedly furnished by each and every one of the alleged Plaintiff’s Clients and as to whether the alleged “Clients’ Confidential Information” is contained in written or printable documents (and if so) with provision of copies of such documents.

68.Request No.10 also seeks full particulars of the “undertaking” (as referred to in the plea of “[in] the course of undertaking and carrying out each order, project or testing procedures for the Plaintiff’s Clients”), including but not limited to the date(s) and term(s) of each and every alleged “undertaking” given to each and every alleged Plaintiff’s Client, and whether each alleged “undertaking” is contained in written or printable document (and if so) with provision of copy of such document.

69.In paragraph 9 of the Defence, D2 and D3 claim that the plea in paragraph 9 of the SOC is hopelessly lacking in particulars, but insofar as necessary, they deny that the plaintiff is the owner of the alleged Clients’ Confidential Information, which in any event does not have the necessary quality of confidence to found any action for breach of confidence.

70.Paragraph 11(c) of the SOC pleads as follows:

“Aside from dealing with Clients’ Confidential Information, the Plaintiff was and is at all material times the owner or otherwise beneficially entitled to possess and deal with, to the exclusion of all others, the following additional confidential and non-public information in the course of its business operations:

……

(c) All information relating to the Plaintiff’s own technical operations and test procedures, including but not limited to procedural and technical know-how and expertise, test designs, internal sequence of testing and operations which are created, devised, invented, modified, customized and which arose in the course of the Plaintiff’s Business (“Technical Confidential Information”).

……”

71.By Request No.12, D2 and D3 seek full particulars of the alleged “Technical Confidential Information” and whether the alleged “Technical Confidential Information” is contained in written or printable documents (and if so) with provision of copies of such documents.

72.By paragraph 11 of the Defence, D2 and D3 deny paragraph 11 of the SOC, and insofar as necessary they also deny that the plaintiff is the owner of the alleged Plaintiff’s Confidential Information, which in any event does not have the necessary quality of confidence to found any action for breach of confidence. It is also averred in paragraphs 10(6)-(7) of the Defence that the confidentiality obligations relate to the core technology and intellectual property rights and not the testing methods themselves, and it was SWT (and not the plaintiff) that was required to enter into confidentiality agreements relating to the core technology and intellectual property rights.

73.Mr Ho submits that the pleas as to “Clients’ Confidential Information” and “Technical Confidential Information” are most general and not supported by particulars which are necessary to draw the distinction between confidential information of the employer and general skill and knowledge of the employee. He says it will be impossible for the plaintiff to establish misuse of confidential information unless and until those alleged confidential information is actually defined. He refers to Ocular Sciences Ltd v Aspect Vision Care Ltd [1997] RPC 289, 359 in which Laddie LJ observed as follows:

“The rules relating to the particularity of pleadings apply to breach of confidence actions as they apply to all other proceedings. But it is well recognised that breach of confidence actions can be used to oppress and harass competitors and ex-employees. The courts are therefore careful to ensure that the plaintiff gives full and proper particulars of all the confidential information on which he intends to rely in the proceedings. If the plaintiff fails to do this the court may infer that the purpose of the litigation is harassment rather than the protection of the plaintiff’s rights and may strike out the action as an abuse of process.”

74.Mr Ho says D2 and D3 must know what case they have to meet and the absence of proper particulars (a) may affect their ability to identify which items relied on by the plaintiff were matters of public knowledge, and (b) may compromise their ability to defend themselves if the plaintiff can rely on matters without giving proper warning. Mr Ho argues it is therefore necessary for the plaintiff to properly identify the confidential information so that D2 and D3 can properly prepare for the trial.

75.In my view, Requests Nos.10 and 12 fail to recognise that the Clients’ Confidential Information and the Technical Confidential Information have been particularised in paragraphs 9 and 11(c) of the SOC. In respect of the former, the plaintiff has averred that they are market-sensitive, highly confidential and non-public information furnished by the relevant Plaintiff’s Client in the course of the plaintiff undertaking and carrying out each order, project or testing procedures for such client, and the plaintiff has gone even further to list out the particular types of information that come within such description (see paragraph 66 above). In respect of the latter, the plaintiff has averred that they are information owned by the plaintiff or to which the plaintiff is beneficially entitled to exclusively possess and deal with relating to the plaintiff’s own technical operations and test procedures, and the plaintiff has gone further to list out the particular types of information that come within such description (see paragraph 70 above).

76.To go beyond such particulars to ask for details of each and every piece of confidential information furnished by each and every Plaintiff’s Client from 2004 to date is to look for evidence rather than particulars of material facts. In my view, the relevant material facts have been pleaded and sufficiently particularised. Whether the plaintiff is able to establish at the trial any misuse of the confidential information as already particularised is neither here nor there. What has been pleaded should sufficiently tell D2 and D3 the basis for and the nature of the alleged confidential information that the plaintiff relies, and it is for them to determine whether those pleaded categories of information are within the public domain or not.

77.In my view, Request No.10(4)-(6) in relation to the plea as to “the course of [the plaintiff] undertaking …… each order, project or test procedures for the Plaintiff’s Clients” (my emphasis) is misconceived. The requests under Request No.10(4)-(6) (see paragraph 68 above) for particulars of each and every “undertaking” given to each and every Plaintiff’s Client, which envisaged the possibility of such “undertaking” to be in the form of a document, proceed under the misconception that the word “undertaking” is a noun, ie a guarantee or promise, whereas plain reading of paragraph 9 of the SOC suggests that the word “undertaking” is a verb that means “to take upon oneself” or “to put oneself under obligation to perform” (see Merriam-Webster dictionary). This has nothing to do with any promise given to the Plaintiff’s Clients, but rather it concerns the plaintiff’s performance of services for the Plaintiff’s Clients. There is no merit to Request No.10(4)-(6).

78.In the circumstances, Requests Nos.10 and 12 must be dismissed.

XI.  REQUEST NO.11

79.Paragraph 10 of the SOC pleads that:

“Therefore, as a condition prior to engaging the Plaintiff, it is often the case for the Plaintiff’s Clients to require the Plaintiff (and/or SWT) to enter into confidentiality agreements, whether in writing or howsoever otherwise, with them to prevent all Clients’ Confidential Information from being communicated and divulged to the public and competing companies alike and from being mis-used by the Plaintiff and/or its officers, agents, servants and/or employees.”

80.By Request No.11, D2 and D3 seek full particulars of the alleged “confidentiality agreements” allegedly furnished by each and every one of the alleged Plaintiff’s Clients, and if so, whether such agreements were made orally or in writing with full particulars of the oral agreements or with provision of copies of the written agreements.

81.In paragraph 10 of the Defence, D2 and D3 aver inter alia that in the electronic manufacturing industry:

(a)  different components require different testing requirements and each test is designed exclusively for a particular project catering to the specific specifications demanded and/or categorised by the customers (test methods and specific requirements);

(b)  the standards and specifications of their products and the parameters required for the testing methods would be provided by the customers or factories;

(c)  the testing methods, specifications and requirements would be different every time, and the life span for each testing method is short;

(d)  the confidentiality obligations relate to the core technology and intellectual property rights, and not the testing methods themselves;

(e)  SWT was required to enter into confidentiality agreements relating to the core technology and intellectual property rights.

82.Mr Ho says that since the plaintiff appears to rely on certain confidentiality agreements, it must be obvious and trite that D2 and D3 are entitled to the particulars of those agreements, which will shed light on what the confidential information is.

83.In my view, the plaintiff has sufficiently set out in paragraph 10 of the SOC the material gist and effect of the confidentiality agreements furnished to the Plaintiff’s Clients, which is to prevent leakage of the Clients’ Confidential Information to their competitors or the public and misuse by the plaintiff and its staff. The relevant material facts are the purpose and effect of the confidentiality agreements and not how many there are and when/where they were made. Those details are at best evidence which need not be pleaded.

84.I am of the view that it is unnecessary at this stage of the proceedings before discovery and/or witness statements for the plaintiff to provide the FBP sought under Request No.11. To ask for particulars of every single confidentiality agreement made by the plaintiff to all of their clients from its incorporation in 2004 to date is not only onerous but unnecessary for the purpose of saving costs, especially when, as Mr Poon points out, they are matters of evidence and the plaintiff has elaborated on the confidentiality agreements in paragraphs 13-15 of the 1^st affirmation of Wei Wen and paragraphs 15(a)-(d) of the 3^rd affirmation of Wei Wen and produced samples of such confidentiality agreements in exhibits “WW-27” and “WW-28” of the 3^rd affirmation of Wei Wen.

85.Mr Ho complains that the plaintiff merely disclosed 2 confidentiality agreements in the 3^rd affirmation of Wei Wen, and it is unsatisfactory to extrapolate and apply the terms of those 2 confidentiality agreements to all of the 54 clients of the plaintiff set out in Annexure A of the SOC. In my view, this illuminates the fact that D2 and D3 are well aware of the material facts relied on by the plaintiff as explained in paragraph 83 above, but they merely want sight of the evidence, ie detail and/or copy of each and every confidentiality agreement.

86.Request No.11 is therefore dismissed.

XII.  REQUEST NO.18

87.Paragraph 19 of the SOC pleads that by the end of 2011 D3 ceased to act as a director of the plaintiff, but notwithstanding this D3 continued to owe inter alia a duty not to divert business opportunities from the plaintiff.

88.D2 and D3 seek full particulars as to (a) when and how D3’s directorship was terminated and (b) the material facts upon which the plaintiff seeks to establish that D3 continues to owe to the plaintiff a duty not to divert business opportunities from the plaintiff after she ceased to be a director of the plaintiff.

89.In paragraph 17 of the Defence, D2 and D3 deny paragraph 19 of the SOC and aver that D3 ceased to be a director of the plaintiff since in/around June 2011.

90.Mr Ho submits that (a) the pleaded time of “end of 2011” is anything but certain so D3 is entitled to know precisely when her directorship was terminated, and (b) D3 is entitled to know when the aforesaid alleged duty arose and what has given rise to such duty even after the termination of her directorship with the plaintiff.

91.As Mr Poon rightly points out, the plaintiff has already pleaded the time when D3 ceased to be a director of the plaintiff. It is not a matter for FBP but whether there is evidence to support the pleaded period of “end of 2011”. The fact that the Defence pleaded a different time as to when D3 ceased to be a director of the plaintiff does not justify the FBP sought. Further, since there is no dispute that D3 has ceased to be a director of the plaintiff, I cannot see how the manner of termination of D3’s directorship can be relevant or deserving of the provision of FBP. Request No.18(1) is dismissed.

92.However, I consider it appropriate to allow Request No.18(2) which requires the plaintiff to give full particulars of the material facts upon which the plaintiff seeks to establish that D3 continues to owe a duty not to divert business opportunities from the plaintiff after she has ceased to be a director of the plaintiff. I am not persuaded by Mr Poon’s suggestion that this is a matter of law and not fact. There is a possibility (and I put it no higher) that such duty that extends beyond the termination of D3’s directorship may arise from contract. I agree that D3 needs to know the basis for the assertion that she continues to owe the duty as alleged.

XIII. REQUEST NO.19

93.Paragraph 22 of the SOC pleads inter alia that SWT had required all its officers and staff members (including D1 and D3) to enter into separate standard-form confidentiality agreements with SWT (ie SWT’s Confidentiality Agreements) to protect inter alia the Plaintiff’s Confidential Information.

94.Request No.19 seeks FBP as to the terms of the SWT’s Confidentiality Agreements, when and where each of D1 and D3 entered into the SWT’s Confidentiality Agreements, and the identity of the plaintiff’s representative(s) to whom D1 and D3 made the SWT’s Confidentiality Agreements.

95.In paragraph 19 of the Defence, D2 and D3 deny that D3 entered into the SWT’s Confidentiality Agreement as alleged or that D3 removed her SWT’s Confidentiality Agreement or caused the same to be removed as alleged.

96.Mr Ho submits that since (a) the plaintiff appears to rely on the terms of SWT’s Confidentiality Agreements made by D1 and D3 and (b) D3 denies she has entered into any such agreement, it is obvious and trite that D2 and D3 are entitled to FBP of those agreements. He accepts that a sample SWT’s Confidentiality Agreement has been exhibited as “WW-4” in the 1^st affirmation of Wei Wen, but says that paragraph 4(16) of such affirmation (which was made before D3 joined as a co-defendant in the present action) only says that D1 entered into a similar standard-form agreement with SWT, so the sample agreement concerns D1 and not D3.

97.I am not persuaded that Request No.19(1)(i) that asks for the terms of the SWT’s Confidentiality Agreement is necessary because it is quite plain from paragraphs 22-23 of the SOC that the SWT’s Confidentiality Agreements executed by D1 and D3 were “standard-form” and that the plaintiff will produce a standard-form copy of the same and rely on the terms therein for their full effect. There is no suggestion in the SOC that D1 and D2 used different standard-form SWT’s Confidentiality Agreements.  In fact, the reference to a standard-form copy indicates otherwise. Since the sample SWT’s Confidentiality Agreement has been exhibited to the 1^st affirmation of Wei Wen and known to D2 and D3, Request No.19(1)(i) is therefore unnecessary either for disposing fairly of the cause or matter or for saving costs.

98.However, I am persuaded that the plaintiff should give the FBP sought under Request No.19(1)(ii)-(iv) since the existence of the SWT’s Confidentiality Agreements by D1 and D3 (which D3 disputes) is material to the plaintiff’s claim for breach of confidence (see paragraph 99 below). Hence, particulars as to how they come into existence are not only relevant but necessary. I therefore allow Request No.19(1)(ii)-(iv).

XIV.  REQUEST NO.20

99.Paragraph 23 of the SOC pleads that further or alternatively given the close business relationship between SWT and the plaintiff, the duty of confidence D1 and D3 owed to the plaintiff is contained and/or reflected in the terms of their respective SWT’s Confidentiality Agreement. It is further averred that the plaintiff will seek to produce a sample standard-form copy of the same and rely on the terms therein for their full effect.

100.By Request No.20, D2 and D3 ask the plaintiff to explain the meaning of “close business relationship between SWT and the plaintiff” and to state whether there is any written/oral contract/agreement arising between the plaintiff and SWT out of the alleged “close business relationship”, and if so, whether it was made orally or in writing with full particulars of the oral contract/agreement or with provision of a copy of the written contract/agreement.

101.In paragraph 20 of the Defence, D2 and D3 deny that D3 entered into the alleged SWT’s Confidentiality Agreement as alleged or that D3 had removed her agreement as alleged or caused the same to be removed. Insofar as necessary, D2 and D3 aver that SWT is not a party to the present action and the alleged duty of confidence contained and/or reflected in the alleged SWT’s Confidentiality Agreement (which is denied) is immaterial and/or irrelevant.

102.Mr Ho points out that the plaintiff in paragraph 2 of the SOC avers that they carry on a business similar to SWT even though they are completely separate entities, which contradicts the assertion in paragraph 23 of the SOC that they have a close business relationship, so D2 and D3 are entitled to the particulars sought, especially when the actual relationship between the plaintiff and SWT is the heart of the dispute in this action.

103.I have rejected such argument in my discussion in respect of Request No.9 in paragraphs 60-64 above and the close business relationship between the plaintiff and SWT has been particularised in paragraph 8 of the SOC (see discussion in paragraphs 63-64 above). Request No.20 is dismissed.

XV.  REQUEST NO.24

104.Paragraphs 31(e) of the SOC pleads that by reason of the specialised, complex, and highly technical nature of the Plaintiff’s Business, D2 could not have carried out their business without the wrongful disclosure to D2 and/or misuse by D1 and/or D3 of the Plaintiff’s Confidential Information, including:

“(e) Similarly, owing to the very nature of the Plaintiff’s Business as described in the above, the Plaintiff is required to source for very specific raw materials and component parts in undertaking orders, projects and/or testing procedures for clients.”

In paragraph 25 of the Defence, D2 and D3 deny the pleaded allegation.

105.Request No.24 seeks full particulars of the alleged “very specific raw materials and component parts”. Mr Ho says that the plea in paragraph 31(e) of the SOC is most general and not supported by particulars of the “very specific raw materials” and “component parts”, so FBP are required to limit the generality of the pleadings and evidence. Further, although paragraph 10 of the 2^nd affirmation of Wei Wen and exhibit “WW-20” thereto gave sample purchases of raw materials, they do not identify what are the items of the “very specific” raw materials.

106.In my view, the crux of the pleaded averment is that D2 could not have carried out their business if D1 and/or D3 had not misused and/or disclosed to D2 the Plaintiff’s Confidential Information. The basis for inferring such pleaded averment is the specialised, complex and highly technical nature of the Plaintiff’s Business. As “particulars” of the pleaded allegation that the Plaintiff’s Business is specialised, complex and highly technical in nature, the plaintiff pleads that they have to source for very specific raw materials and component parts in carrying out its work for their clients. Thus, the plea in paragraph 31(e) of the SOC is itself FBP of the pleaded material facts, and what D2 and D3 are now asking for under Request No.24 is evidence in support of the particulars given. It is inappropriate and unnecessary to grant such request, so Request No.24 is dismissed.

XVI.  REQUESTS NO.28, 29 AND 30

107.Paragraphs 31(i), (j) and (k) of the SOC plead that by reason of the specialised, complex, and highly technical nature of the Plaintiff’s Business, D2 could not have carried out their business without wrongful disclosure to D2 and/or misuse by D1 and/or D3 of the Plaintiff’s Confidential Information, including:

“(i) Clients’ Confidential Information is only provided to the Plaintiff by the Plaintiff’s Clients upon the Plaintiff going through a lengthy credit check and vetting process, which can easily take up to 1-2 years.

(j) Since its inception, the Plaintiff has invented, developed and/or modified its internal plant, equipment and technology to specifically cater to each of the Plaintiff’s Clients needs and requirements. This has in turn enabled the Plaintiff to maintain a competitive edge in the industry and continue attracting new orders and/or projects.

(k) Such creations, inventions and/or modifications are fully owned by the plaintiff (and/or SWT) and are not available to the public.”

In paragraph 25 of the Defence, D2 and D3 deny the pleaded allegations.

108.Request No.28 requires the plaintiff to provide full particulars of “each and everyone of the alleged lengthy credit check and vetting process that the Plaintiff has allegedly gone through”.

109.By Request No.29, D2 and D3 seek full particulars of (a) the alleged inventions created by the plaintiff, the alleged internal plant owned by the plaintiff, and the alleged equipment and technology developed or modified by the plaintiff all since the plaintiff’s inception, and (b) the location at which the aforesaid alleged inventions, internal plant and equipment/technology are stored and maintained.

110.Request No.30 requires the plaintiff to state whether the alleged creations, inventions and/or modifications are owned jointly by the plaintiff and SWT, and if not, to give full particulars as to how two parties can own the same set of creations, inventions and/or modifications at the same time.

111.Mr Ho says the pleas in paragraphs 31(i)-(k) of the SOC are general pleas not supported by any particulars, so the plaintiff must provide the particulars sought in order to limit the generality of the pleadings and the evidence. For paragraph 31(i) of the SOC, the case of D2 and D3 is that only SWT went through the vetting process because all clients belonged to SWT. For paragraph 31(j) of the SOC, Mr Ho says it will not be possible for the plaintiff to establish misuse unless and until the alleged inventions, internal plant and equipment/technology are actually defined. For paragraph 31(k) of the SOC, D2 and D3 say that the particulars sought are FBP and not a matter of proof of the pleaded averments, especially when SWT is not a party to the present action.

112.Applying the analysis in paragraph 106 above mutatis mutandis, I agree with Mr Poon that Requests Nos.28, 29 and 30 are requests for evidence and not particulars. I am persuaded that D2 and D3 are not left in doubt as to the nature of the plaintiff’s case even though they have yet to fully appreciate the evidence that the plaintiff may adduce in support of the pleaded allegations. This is especially so in respect of Request No. 28 when their stance is that it was SWT and not the plaintiff that went through any vetting process, and in respect of Request No. 29 when their concern is whether the plaintiff will be able to prove their case on the alleged “misuse”. It is also onerous and unnecessary for the plaintiff to give particulars of “each and every one” of the credit check and vetting process with every single client, and of every invention, internal plant and equipment/technology throughout the whole period from 2004 to date. It is unnecessary for disposing fairly of the cause or matter, and most definitely unnecessary for the saving of costs.

113.In particular in relation to Request No.30, I see no logical or legal difficulty of any joint ownership of creations, inventions and/or modifications by 2 entities whether as a result of collaboration or agreement or otherwise. Anyway, the basis for any such joint ownership is a matter of evidence and not FBP. In fact, it may be more interesting to find out why creations, inventions and/or modifications that are solely owned by SWT under the plea of “fully owned by the [plaintiff] (and/or SWT)” (my emphasis) can be supported, but this is not any part of the request under consideration. Requests Nos.28, 29 and 30 are therefore dismissed.

XVII.  REQUEST NO.35

114.Paragraph 51 of the SOC pleads that “[despite] repeated requests on the part of the Plaintiff”, D1 and D3 have not accounted for, repaid to the plaintiff and/or explained the purposes of the withdrawals of certain funds from the plaintiff’s bank accounts and/or the current whereabouts of the same”. In paragraph 26 of the Defence, D2 and D3 deny such pleaded allegation.

115.By Request No.35, D2 and D3 seek full particulars of “each and everyone of the alleged request” and whether they were made orally or in writing with full particulars of the oral requests or with provision of copies of the written requests.

116.Mr Ho says this is a most general plea and is not supported by any particulars, so the plaintiff must provide the particulars sought in order to limit the generality of the pleadings and the evidence and to enable D2 and D3 to know what evidence they ought to prepare for the trial.

117.In my view, Request No. 35 is unnecessary for D2 and D3 to understand the plaintiff’s case for it does not relate to the material issues in dispute. This is especially so when the plaintiff’s claim is hotly disputed by D2 and D3 by way of their Defence and when they have vigorously resisted various interlocutory applications by the plaintiff in the course of the present proceedings.  Requests for FBP on matters that are marginally material or not material should be discouraged after the Civil Justice Reform (see paragraphs 27-30 above).  Request No.35 is dismissed.

XVIII.  CONCLUSION

118.In the circumstances, I grant an order that the plaintiff do give FBP of the SOC as per Requests No.17(4), 18(2) and 19(1)(ii)-(iv) set out in the annexure to the Summons by filing and serving the Answer to such requests within 14 days after today. I further dismiss paragraph 1 of the Summons in respect of Requests Nos.6, 8-12, 17(2), 18(1), 19(1)(i), 20, 24, 28-30 and 35 set out in the annexure to the Summons.

119.The plaintiff is successful in resisting most of the Remaining Requests, and Mr Poon has conceded Request No.17(4) at the Hearing.  In the circumstances, I grant a costs order nisi that the plaintiff be entitled to 80% of the costs of and occasioned by the Summons (including all costs reserved, if any) to be summarily assessed and paid forthwith.

120.Although the plaintiff has submitted their statement of costs, it will have to be adjusted in light of the costs order nisi. For the purpose of the summary assessment of costs, I grant the following directions:

(a)   if no application is made to vary the costs order nisi within 14 days from the date hereof, the plaintiff do within 21 days from the date hereof lodge and serve revised statement of costs not exceeding one page pursuant to Practice Direction 14.3, and D2 and D3 do within 7 days thereafter lodge and serve succinct summary of objections in bullet-point format of not more than one page in respect of the plaintiff’s statement of costs (“Objection Summary”), and unless otherwise directed the summary assessment of costs will be by paper disposal;

(b) if application is made to vary the costs order nisi within 14 days from the date hereof, the plaintiff and D2 and D3 do within 7 days thereafter lodge and serve their respective Objection Summary to the other party(ies)’ statement of costs already lodged and served, and the party(ies) seeking variation of the costs order nisi do within 14 days from the date hereof fix a date with the Listing Clerk for the hearing of the application for variation of the costs order nisi and summary assessment of costs before me in chambers (open to the public) on a date not before 35 days from the date hereof with half hour reserved.

Mr Poon Siu Bun instructed by Messrs Leung & Associates for the plaintiff.

Mr Raymond Ho instructed by Messrs Johnny KK Leung & Co for the 2^nd and 3^rd defendants.