TAM HEUNG MAN v. WONG TAI CHEONG, also known as “Max” on WhatsApp

DCCJ 445/2023

[2026] HKDC 1109

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 445 OF 2023

BETWEEN

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REASONS FOR DECISION

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1.  The 12-day trial of this libel action is scheduled to start on 13 August 2026. This is the second PTR hearing.

2.  Prior to the first PTR held on 15 May 2026:

(a)  The defendant filed and served his 5^th supplemental list of documents dated 1 April 2026 (“LOD5”) giving discovery of 12 documents.

(b)  The plaintiff came to know, through the defence submissions for the PTR, that the defendant had served a writ of subpoena ad testificandum and duces tecum (“the Subpoena”) on So Koon Shing (“Mr So”) of Top Property Services Co Ltd (“Top Property”), and took out the summons dated 14 May 2026 to set aside the Subpoena (“the plaintiff’s summons”).

3.  At the first PTR:

(a)  The judge imposed an unless order to oblige the defendant to take out an application for leave to rely on the documents enumerated in LOD5 at trial and for leave to file and serve a supplemental witness statement to explain the relevance of the documents. Thereafter, the defendant took out the summons dated 29 May 2026 with a draft supplemental witness statement of the defendant annexed thereto (“the defendant’s summons”).

(b)  The judge also set down both summonses for argument at the second PTR.

4.  After hearing the argument, I set aside the Subpoena, granted leave to the defendant to rely on 6 documents only, and ordered the defendant to pay indemnity costs. I said I would hand down my reasons, which I now do.

Essential background

5.  The plaintiff and the defendant are owners of residential units in the property development at 3 Lung Poon Street, Diamond Hill, Kowloon (“the Development”). The Development comprises a residential part called “Galaxia” (星河明居) and a commercial part known as “Plaza Hollywood” (荷李活廣場). At the material time, Top Property was the manager of the Development.

6.  Over the years, both parties participated in the management of the Development and served in various capacity in its owners’ committee (“the OC”) and residential sub-committee (“the RSC”).

7.  This libel action is concerned with the messages attributed to the defendant between January and October 2022 in a WhatsApp group known as “星河明居關注組A” or “星河明居關注組A – 推動成立業主立案法團” (“the WhatsApp Group”) relating to 10 incidents. The WhatsApp Group mainly comprised residents and owners of Galaxia at the material time.

8.  According to the pleadings:

(a)  It is the plaintiff’s case that all the messages attributed to the defendant were defamatory of her.

(b)  The defendant does not dispute the fact that he sent those messages but relies on the following defences: the messages were not defamatory of the plaintiff; the defence of justification; and the defence of qualified privilege.

(c)  In reply, the plaintiff alleges malice on the part of the defendant to rebut the defence of qualified privilege.

The plaintiff’s summons

9.  The plaintiff took out the summons to set aside the Subpoena. Her counsel argued that:

(a)  The defendant did not obtain “a note from a judge or the master authorizing the issue of such writ” in breach of Order 38, rule 14(5) of the RDC.

(b)  The late disclosure of the Subpoena is an oppressive ambush on the part of the defendant and amounts to an abuse of process.

(c)  The nature and scope of the evidence intended to be given by Mr So are unclear, and the relevance of the documents sought to be discovered from him is not apparent.

(d)  The plaintiff is prejudiced by the Subpoena. Given only about 2 months left before trial with intervening summer holidays, the plaintiff would not have sufficient time to conduct proper investigation and to prepare for Mr So’s evidence.

10.  The defendant gave the following chronology in the affirmations filed in opposition to the plaintiff’s summons:

(a)  When leave to set down for trial was granted on 31 March 2025, the master reminded the parties to apply for a subpoena if necessary in good time.

(b)  On 26 September 2025, the defendant filed a praecipe for leave to issue a subpoena to “Top Property”. The master raised a number of requisitions and the defendant responded by the letter dated 6 October 2025. The master then asked the defendant to identify the person to whom the subpoena should be issued and the defendant named Anson Cheng, the Director and Deputy General Manager of Top Property (“Mr Cheng”). Consequently, a subpoena was issued to Mr Cheng.

(c)  It is the defendant’s case that Mr Cheng was evading service and the defendant was unable to effect service on him. The defendant applied for substituted service but the application was not approved.

(d)  Then, the defendant filed a fresh praecipe for leave to issue a subpoena to Mr So. After the Subpoena was issued, it was personally served on Mr So on 6 February 2026.

11.  The defence counsel submitted that:

(a)  The defendant has a general right to call oral evidence of witnesses who will assist him in presenting his case.

(b)  Whilst the plaintiff was only informed of the Subpoena at the first PTR, there was no delay on the part of the defendant in applying for a subpoena as shown in the above chronology. In any event, the probative value of Mr So’s evidence would outweigh any delay.

(c)  Mr So’s evidence relates to the 9^th pleaded incident and is very narrow in scope: (i) the number of proxies made in favour of the plaintiff and whether the plaintiff was able to dominate the voting result at the EGM held on 31 July 2020; and (ii) the tender documents and whether HKCCS was not able to meet the job requirements.[1]

(d)  The trial is unlikely to be derailed or disrupted as the parties would only require less than 2 hours to complete Mr So’s evidence.

12.  To start with, I note from the court file that the praecipe dated 26 January 2026 for the Subpoena was endorsed with “leave to issue subpoena granted” by the master. There was compliance with Order 38, rule 14(5).

13.  Both parties cited Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd & Anor [2010] 2 HKC 356 on the “proper practice” regarding application for leave to issue subpoena in the context of general civil litigation. The practice advocated in Big Island was elaborated in subsequent cases such as Tsui Koon Wah v Director of Social Welfare, unreported, HCA 2938/2003, 17 February 2006 (CFI), Chan Cheung Ming Jacky v Siu Sin Man (formerly known as Siu Kit Ling) [2014] 6 HKC 570 (CA) and Cosimo Borrelli as Trustee of the SFC Litigation Trust v Allen Tak Yuen Chan & Ors [2019] HKCFI 1376.

14.  The following principles, derived from these authorities, are relevant for present purpose:

(a)  In general, subject to the questions of admissibility and relevance, each party in the proceedings is at liberty to call whatever evidence he or she considers necessary provided that procedural requirements are complied with (§28 of Chan Cheung Ming Jacky).

(b)  A party must act with due diligence in approaching his witnesses (§2 of Big Island). The proper stage to deal with questions relating to the issue of subpoena for witnesses is the CMC (§21 of Chan Cheung Ming Jacky).

(c)  According to the proper procedure: (i) If the witness is willing to assist, the party intending to call him should prepare a statement of the witness and exchange it with the other side in accordance with the court’s directions (§3 of Big Island). If he fails to do so, he may not be allowed to call the witness without leave (Order 38, rule 2A(10)). (ii) If the witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the CMC and then apply to issue the subpoena once the trial dates are known (§4 of Big Island). The court may direct the party intending to call an unwilling witness to provide a statement of the nature of the evidence intended to be adduced (Order 38, rule 2A(5)).

(d)  In respect of an application for leave to issue a subpoena made in good time, the court conduct a filtering process to ensure that the application is not an abuse of process and that it relates to a cause or matter in which oral evidence is appropriate. Reference should be made to the guidance of Mortimer VP in Li Wai Tat v Li Man York [1998] 1 HKLRD 121 (CA) at 123D-F. In respect of late applications, the court will have to examine all the relevant circumstances and the significance of the intended evidence to be adduced is one factor to be taken into account (§28 of Chan Cheung Ming Jacky).

(e)  The other side should be informed forthwith of the issue of a subpoena (§4 of Big Island).

(f)  The issue of a witness subpoena is no assurance that a party who has failed to comply with the procedural requirements will be allowed to call his witness at the trial. The court will only give leave to adduce evidence from witnesses who had not given statements as directed if the party calling him can show good reasons for not serving witnesses statements in compliance with the direction for exchange of witness statements (§28 of Tsui Koon Wah).

15.  The defendant has clearly failed to follow the established practice in procuring Mr So’s evidence:

(a)  Notwithstanding the directions for the exchange of witness statements, the plaintiff was not served with Mr So’s witness statement.

(b)  Up to the CMC held on 31 March 2025, the defendant had only served two witness statements of himself on the plaintiff. He confirmed in his listing questionnaire that he had served all witness statements and that all steps that ought to be taken to prepare for trial had been duly taken. There was no indication that he would call any witness, whether Mr Cheng or Mr So.

(c)  According to the defence counsel, “Mr So has not indicated whether he is willing to attend trial to testify and adduce the listed documents, and defendant has not been able to prepare his witness statement and provide the same to plaintiff.”  It does not appear that Mr So had been asked if he was willing to testify for the defendant or approached for a witness statement.

(d)  The plaintiff was not forthwith informed of the Subpoena after it was issued. The defendant only intimated his intention to call Mr So at the first PTR.

16.  In her oral submissions, the defence counsel suggested that the defendant had turned to Mr So when they were unable to serve a subpoena on Mr Cheng. With respect, that provided no good reasons for not preparing a witness statement for Mr So and have it serve on the plaintiff well in advance of the trial.

17.  According to the defendant’s own evidence (filed in support of the defendant’s summons), he has known Mr So since February 2023 and believes him to be a reasonable and helpful person. Mr So was not available at Galaxia between August 2025 and early 2026. When Mr So turned up at Galaxia again, he approached Mr So on 18 January 2026 to request inspection of the past minutes of the OC. On 6 February 2026, he was told by Mr So that he might inspect the minutes on the following day. The inspection on 7 February 2026 led to the filing of LOD5. So, there were in fact contacts between the defendant and Mr So before and after the service of the Subpoena. It is baffling why no proof of evidence was taken from Mr So.

18.  The plaintiff duly took out the summons to set aside the Subpoena upon learning of it (§4 of Big Island). The defence counsel argued that it should be dismissed as the plaintiff only had a limited interest in setting it aside given the narrow scope of Mr So’s evidence, citing §26 of Chan Cheung Ming Jacky.

19.  In §26 of Chan Cheung Ming Jacky, the Court of Appeal referred to a comment in Phipson on Evidence and said that the other party to the litigation does not have a general right to apply to set aside a subpoena for fear that the recognition of such a right may encourage ancillary litigation. Nonetheless, the Court of Appeal recognized the limited interest of the opposing party in setting aside a subpoena, namely, “an interest that the hearing should not be allowed to expand beyond the trial of the issues raised by the pleadings and matters necessarily ancillary thereto”.

20.  Mr So is directed by the Subpoena to attend the trial “to give evidence on behalf of the Defendant.”  In the absence of a witness statement, it is not known what his evidence will be. Both counsel agreed that it is not apparent from the minutes of the EGM in question that Mr So had attended the EGM. It is not known why the defendant says Mr So has personal knowledge about the proxies at the EGM or the tender of HKCCS, and whether the plaintiff had dominated the voting result at the EGM. According to the defendant, Mr So did not attend Galaxia between August 2025 and early 2026. It is not known why the defendant says Mr So has personal knowledge about the work of HKCCS. On the other hand, once Mr So has taken the witness stand, he may testify about matters he is able to prove of his own knowledge and his evidence may not be confined to the two aspects narrowly defined by the defence counsel. It is not known how much he knows about the management of the Development and the 10 pleaded incidents. The plaintiff will be quite unable to prepare for Mr So’s examination out of nothing. There is a risk that Mr So’s evidence at trial will be turned into a fishing expedition.

21.  Mr So is also directed by the Subpoena to produce the following documents at the trial:

“ (1) records showing (a) number of owners attended the EGM on 31 July 2020 in person and (b) the undivided shares percentage to total undivided shares casted in agenda item no 1 they represent;

(2) records showing (a) number of proxies received for the EGM on 31 July 2020 and (b) the undivided shares percentage to total undivided shares casted in agenda item no 1 they represent;

(3) records showing (a) number of proxies (received) given to the Plaintiff in this action and (b) the undivided shares percentage to total undivided shares casted in agenda item no 1 they represent;

(4) records showing (a) number of the votes casted by the Plaintiff as an owner and as the proxies holder in favour of Hong Kong Commercial Cleaning Services Ltd and (b) the undivided shares percentage to total undivided shares casted in agenda item no 1 they represent; and

(5) copy of the tender documents on 2020-2023 cleaning and pest control contract.”

22.  It is common ground that Top Property has already ceased working as the manager of the Development. It is not known whether Mr So still has access to the required records and documents and how he may produce them at trial. More importantly, it will be impossible for the plaintiff to deal with any document produce by Mr So there and then without prior investigation.

23.  It is an abuse of process for the defendant to call Mr So without following the established procedure. There is much force in the plaintiff’s complaint that she had been ambushed. The defendant confirmed through the many case management questionnaires he filed that discovery was complete and that he had no other witness apart from himself. There was no indication that he was minded to call Mr So or seek discovery from Top Property. If that was thought necessary, there was no good reason for the defendant not complying with the directions for exchange of witness statements or applying for specific discovery earlier. The plaintiff was not informed of the Subpoena until the first PTR. At this late stage of the proceedings, both parties should focus on trial preparation. It would be oppressive to require the plaintiff to divert attention and effort in second guessing Mr So’s evidence.

24.  The primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (Order 1A, rule 2(2)). Based on the materials before me, I am not satisfied that the calling of Mr So at trial will be conducive to the just resolution of this case. Quite to the contrary, the plaintiff’s right to a fair trial will be compromised.

25.  I have therefore decided to set aside the Subpoena.

The defendant’s summons

26.  This case was set down for trial in March 2025 upon the defendant’s confirmation, through his listing questionnaire, that discovery was complete and that all steps that ought to be taken to prepare for trial had been duly taken.

27.  The defendant filed LOD5 a year later in April 2026. By the defendant’s summons, the defendant sought leave to rely on the documents enumerated in LOD5 and to file the draft supplemental witness statement annexed to the summons to explain the relevance of the documents.

28.  Although discovery is a continuing obligation and supplemental lists of documents are filed from time to time to fulfill such obligation, a litigant giving late discovery should anticipate complaint from his opponent. It behooves a litigant giving discovery at the eleventh hour to provide the court and the other side with full and accurate information (such as those enumerated below) to enable the court to exercise its discretion properly in dealing with possible objections from his opponent:

(a)  the reasons why these documents were not disclosed earlier;

(b)  the provenance and the maker of these documents;

(c)  the relevance of these documents to the issues before the court; and

(d)  the availability or non-availability of the makers to attend trial for cross-examination in case his opponents make an application under section 48 of the Evidence Ordinance, Cap 8.

See Hong Lok School Ltd & Anor v Chow Sai Yiu & Anor [2003] 2 HKLRD 782 (CFI) at §§4 and 6.

29.  At the second PTR, the plaintiff agreed that documents 5, 6, 9, 10 and 11 enumerated in LOD5 should be placed before the trial court as they may be relevant to the issues at trial. The argument focused on §§28(a) and (c) above.

30.  As to why the discovery was late, the defendant explained that:

(a)  Documents 1, 3 to 8 and 12 were kept by Top Property at the Development. The defendant did not ask for inspection earlier because: (i) Top Property and the plaintiff appeared to be in the same camp; and (ii) Top Property appeared to be on the brink of collapse with many employees leaving the company, and he did not want to exert more pressure on Top Property.

(b)  When Mr So turned up at Galaxia again in early 2026, the defendant approached him and requested to inspect the past minutes of the OC. Arrangement was made for the defendant to inspect the minutes on 7 February 2026 at the clubhouse of Galaxia.

(c)  After the inspection, the defendant did not immediately file LOD5 as he was waiting for the more recent minutes of the OC and EGM. When additional documents were not forthcoming, he filed LOD5 on 1 April 2026.

(d)  The discovery of the above documents prompted him to search through his documents again, which led to the discovery of documents 2 and 9 to 11.

31.  I do not think the defendant has provided any justifiable excuse for the delay.

(a)  According to the plaintiff (which is not disputed by the defendant), it was the practice of the manager to allow members of the OC and RSC to inspect documents pertaining to the management of the Development upon request. As the defendant was a member of the OC from 10 February 2023 and 29 March 2026, there was no reason why he could not have requested to inspect the minutes earlier if thought necessary.

(b)  As to the documents all along in his possession, the defendant simply has no explanation.

32.  Turning to the relevance of the disputed documents:

(a)  Document 1 is the working report of the RSC for the year 2012-2013. It contains an introduction (主席的話), 10 items of community concern (社區關注) and 2 items of estate management (屋苑管理，保障各業主健康及安全).

The defendant alleges that the document is relevant to the defence of justification in relation to his statements in the 1^st incident. He complains that, “原告人於報告中的第二段提到並突出自己為黃大仙區議員，報告餘下內容絕大部份涉及原告人於黃大仙之地區工作，例如反對大磡村興建屏風樓、跟進大磡村大光污染、解決星河明居與悅庭軒之間通道問題、正視蚊患、跟進新蒲崗大廈改造酒店問題、解決鳳德道山邊野狗問題、出席沙中線問題之會議等，整體而言這份報告似一份議員工作報告遠多於星河明居工作事務報告。這份單張是用屋苑管理資源印製及派發，足以反映原告人濫用屋苑管理資源…”.

It may not be said, on a fair reading of the document, that the plaintiff promoted herself as a District Councilor (突出自己為黃大仙區議員).[2]  There is no complaint about the items of work set out in the estate management section. And some of the work listed in the community concern section were clearly done in the interest of the residents of Galaxia.[3]

More importantly, the prejudicial effect of allowing the document far outweighs its probative value. The 1^st incident happened in January 2022. If document 1 is allowed, the plaintiff would have to investigate into what happened in 2012-2013 including the publication and distribution of the document. Given the short time left before trial, this would put unfair pressure on the plaintiff.

(b)  Document 2 is the working report of the RSC in 2016-2017. It carries a report that the temporary ramp for elderly installed near Gate E was removed due to complaints to the Government.

The defendant says this document relates to the defence of justification in relation to his statement in the 3^rd incident. He complains that, “原告人於2018年再倡議架設臨時斜台，目的是部署2019年區議會選舉，去方便使用輪椅人士前往鄰近之投票站投票。這份所謂工作報告是用屋苑管理資源印製及派發，卻用來為原告人競選作宣傳…”.

The report was made in the name of the RSC and the 2019 District Council Election was not mentioned at all.[4]  The location and expected completion date of any future ramp was not stated. It is difficult to see how the document may objectively be construed as promoting the plaintiff in the 2019 District Council Election. Like the previous document, it would be unfair to oblige the plaintiff to investigate into the circumstances surrounding the document at this late stage of the proceedings.

(c)  Document 3 is the minutes of the 12^th meeting of the RSC held on 16 March 2007. The defendant complains that, “會議紀錄之6.4項為討論張貼及派發譚香文議員辦事處刊物事宜，但結論只是由管理處翻查過去多年的會議紀錄再作匯報。”

Item 6.4 is in these terms: “管理處表示有委員提出有關譚香文議員辦事處於本苑派發刊物事宜，由管理處翻查過去多年的會議記錄再作匯報。” I fail to see how this can be relevant to the pleaded incidents.

(d)  Document 4 is the minutes of the 18^th meeting of the RSC held on 14 September 2007. It carries the thoughts (感想) of Mrs Tsang upon her withdrawal from future RSC election. According to the defence counsel, item 1 thereof relates to the so-called “District Councilor Notice Board” mechanism pleaded in §24 of the Reply. The defendant’s complaint is that, “這文件顯示就算在本屋苑都是禁止政治團體張貼宣傳海報。”

In my view, item 1 is equivocal. On the one hand, it suggests that there is a general ban on political material (星河明居大堂以前曾經被人貼宣傳海報，為避免淪為政治競爭場地，經業委會開會決定過後，才堅決拒絕接受任何政治團體進入本邨). On the other hand, it confirms the practice of posting up of publicity material near the letterbox (另外大家應該知道信箱位長期張貼有議員的活動的宣傳). It would be futile to spend time at trial to consider what Mrs Tsang’s thoughts were back in 2007 (when all the pleaded incidents happened in 2022) and whether she had any reasonable basis.

(e)  Document 7 is the minutes of the 10^th meeting of the RSC meeting held on 26 July 2013. It is said to relate to the 6^th and 10^th incidents. The defendant’s focus was on §9.5 of the minutes and his complaint is that, “原告人在業委會會議中竟然討論政治，濫用屋苑管理資源…”.

I do not see how this document can be relevant to the 7^th or 10^th incidents that happened a decade later. In any event, a fair reading of §9.5 reveals that it is related to the management of Galaxia.[5]

(f)  Document 8 is the minutes of the 11^th meeting of the RSC held on 30 August 2013. It is said to relate to the 7^th incident and the defendant’s complaint is that, “原告人在會議中明目張膽，要求分配得屋苑管理資源，去幫助她爭取地區事務…”.

I do not see how this can be relevant to the 7^th incident that happened almost a decade later. In any event, it was the manager who suggested investing resources in the plaintiff’s work as a District Councilor in furtherance of the interests of the owners of Galaxia[6] but the resolution passed at the meeting was merely “通過[管]理處協助改善本苑週邊環境及維護業戶於區內之權益。” .

(g)  Document 12 is the record of proxies for the EGM held on 31 July 2020 (就業主會議委任代表的文書點選及核實紀錄). It relates to the defendant’s allegation in §14(f) of the Re-Amended Defence and should be allowed.[7]

33.  For the above reasons, I have decided to grant leave to the defendant to rely on documents 5, 6, 9, 10, 11 and 12 at trial only. The draft supplemental witness statement attached to the summons should be revised to delete all references to the excluded documents. At the request of the plaintiff, leave was granted to her to file a supplemental witness statement in reply.

Costs

34.  The plaintiff has asked for:

(a)  the costs of the plaintiff’s summons on an indemnity basis payable forthwith; and

(b)  half of her costs of the defendant’s summons on an indemnity basis payable forthwith.

35.  The defendant is agreeable to pay costs on the plaintiff’s summons on a party and party basis. As the plaintiff has succeeded in opposing half of the documents, she should be entitled to half of her costs in opposing the defendant’s summons.

36.  The argument focused on whether the plaintiff should be entitled to indemnity costs.

37.  In Li Xiao Yun & Anor v China Gas Holdings Limited, unreported, CACV 38/2013, 11 March 2013 at §18, the Court of Appeal commented:

“Last minute pre-trial applications also disrupt the preparation for the trial on the part of a trial judge in terms of reading into the case. Instead of getting himself or herself familiar with the issues that have to be tackled at the trial, the judge would have to divert attention and spend time and efforts on such applications. Thus, such practice has to be discouraged and, unless there are good justifications, the unsuccessful appellant should normally be expected to face an order for indemnity costs.”

38.  The defendant has no excuse in not following the established procedure in procuring Mr So’s evidence and in the late discovery. The Subpoena and the defendant’s summons, at this late stage of the proceedings, have the potential of disrupting trial preparation and causing unfairness to the plaintiff. The defendant should be visited with indemnity costs to show the court’s disapproval.

39.  I have therefore ordered:

(a)  the defendant to pay the plaintiff’s costs on the plaintiff’s summons on an indemnity basis, payable forthwith;

(b)  the defendant to pay half of the plaintiff’s costs on the defendant’s summons on an indemnity basis, payable forthwith; and

(c)  summary assessment of the plaintiff’s costs if not agreed.