Szeto Yuk Lin v. Tsang Chiu Mo Samuel and Others

HCA 2392/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2392 OF 2008

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(by Original Action)

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(by Counterclaim)

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D E C I S I O N

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1.Here are my brief reasons. There are two parts to the summons before me today. The first part relates to the defendants’ insistence on the plaintiff answering certain requests as ordered by me on 17 September 2014. The second part is a request for the plaintiff to answer a new request. So it is an application for the plaintiff to answer a new request arising from her previous answers.

2.The first part of the application concerns paragraphs 3(2), 10(1) and (2) and 11(1)(b) of the reply.

3.Mr Chain, counsel for the defendants, has produced a very useful summary of the pleas in the reply, the previous requests and the previous answers.  I will adopt this table as the basis for dealing with the first part of the application.

Paragraph 3(2) of the reply

4.The first part of the answer to a request effectively uses the same plea in the reply to answer the request.  The plaintiff is simply repeating that she is the beneficial owner of all the shares in CSFL without giving particulars and it does not carry her case any further. 

5.The discussion between the Bench and Mr Chong this afternoon shows the confusion that can arise if particulars are not given.  Beneficial ownership is not just legal jargon but a proper legal term that bears meaning and gives rights to a party.  It is not clear if the plaintiff is saying that she is beneficial owner of the money, ie $150 million, or beneficial owner of the shares in the company.  She should answer the request for particulars.

6.The second part to the answer is that the plaintiff explains that the money, $150 million, came from the plaintiff’s own or controlled accounts.

7.Having considered the plaintiff’s answers, I do not think it is appropriate to press the plaintiff further for particulars.  She, on the face of her present answers, has stated her inability to give particulars.  If she chooses to leave such a vague set of answers which does not improve her case much further, I consider that it is, at the end of the day, a matter for the court to draw inferences having considered all the evidence at the trial.

8.Further, as to whether the $50 million was included in the $150 million, again the plaintiff has stated that she is unable to give particulars.  For the same reason, I shall not press on for her to provide a further answer.

9.In respect of paragraph 3(2) of the reply, I shall insist on the plaintiff answering the request in paragraph 3(2) which is to state precisely the plaintiff’s case on the nature of the alleged objection of $150 million into CSFL (whether it was a loan, a gift, a subscription to shares or otherwise).

10.The plaintiff’s plea in the reply has been going round in circles.  I repeat the observations I have made in paragraphs 17 to 20 of my decision on 17 September 2014.  I consider that if the plaintiff does not provide the answer the plea ought to be struck out.

Paragraph 10(1) and (2) of the reply

11.The answer she now gives is simply inconsistent with the previous answers she has given.  She previously said that there was an agreement between the plaintiff and the 1^st and 2^nd defendants acting on behalf of Lisco.  Now she completely contradicts herself by saying that the agreement was not contractual in nature, but denoted some kind of arrangement between her and the two defendants on the affairs of the Lisco as beneficial owner and trustees.

12.She even says that she has not made inquiry as to whether or not the 1^st and 2^nd defendants have obtained authority from the board of the Lisco to proceed with the bid.  Given this sort of answer, I do not consider it meaningful to press on further with the plaintiff answering the requests.  In my view, ultimately it is a matter for the court to draw inferences, having considered all the evidence at the trial.

Paragraph 11(1)(b) of the reply

13.This concerns the purchase of shares in CLL and holding of those shares on trust for the plaintiff.  The previous answer was that the shares were purchased by two employees, Samuel and Simon, using funds provided by the plaintiff.  The plaintiff further says that the funds came from her own or controlled accounts without identifying that.

14.The plaintiff, in her answer, further stated that she does not have possession of the documents relating to the acquisition of shares in and of CLL and is unable to give particulars as to the dates, amounts, mode of payments and identity of payees.  Given this answer, once again, I do not consider it meaningful to press the plaintiff on with a further answer.

The new request

15.Judging from the new request, the defendants are entitled to know the plaintiff’s particulars in order to better prepare the case.  What counsel has told me at the Bar table in purported answer to this request, clearly demonstrates that it was justified for the defendants to seek the particulars, and I so order.

16.Insofar as paragraph 1 of the summons is concerned, I do give an unless order.  I will hear counsel as to the time.  I believe that if the plaintiff does not give the request concerning the basis of the beneficial ownership in paragraph 3(2) of the reply, then the plaintiff’s reply, insofar as this paragraph is concerned, should be struck out.

17.As to the rest of paragraph 10(1)(2), 11(1)(b), as the plaintiff has tried to answer those particulars, I believe it would be too draconian for the court to strike out those few paragraphs at this stage.

18.Paragraph 2 of the summons, I will grant an order for the plaintiff to provide the particulars.  I will also hear counsel as to the time.

Order

19.Unless by 4 pm on 15 December 2014 the plaintiff do provide full particulars to those ordered on 7 December in respect of paragraph 3(2) of the plaintiff’s reply filed on 12 March 2009, paragraph 3(2) of the reply be struck out.  The plaintiff do provide particulars by 4 pm on 15 December 2014.

20.Costs reserved on the summons.

(Submission on the plaintiff’s request for further and better particulars of the defence under requests 3 and 4)

21.I will refuse the request:

(1)  the request did not arise out of anything unclear from the defendants’ pleadings.

(2)  I agree with Mr Chain that this is an attempt to ask the defendants to build a case for the plaintiff.  The scope of the request is so wide that any type of payments into CSFL will be covered by the request and this is not the purpose to be served by a request for further and better particulars.  So I exempt the defendants from having to answer requests 3 and 4.

22.I make an order that the defendants are to provide further and better particulars to the plaintiff’s request dated 4 November 2014 except for requests 3 and 4.  Such further and better particulars are to be provided within 21 days.

Mr K M Chong and Ms Emma Wong, instructed by K.M. Lai & Li, for the plaintiff (by original action) and 1^st and 2^nd defendants (by counterclaim)

Mr Benjamin Chain, instructed by Tso Au Yim & Yeung, for the 1^st to 3^rd defendants (by original action) and 1^st to 4^th plaintiffs (by counterclaim)