霍尼卡姆技術（香港）有限公司 v. 靳哲

HCA 465/2022

[2025] HKCFI 1870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 465 OF 2022

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.  This is the Defendant’s appeal to set aside two Orders made by the same Master. Both Orders, in gist, (a) required the Defendant to clarify the scope of his challenge to the authenticity of certain emails produced by the Plaintiff; and (b) directed the parties to propose expert directions. The second Order was on an unless order basis which carried the sanction of barring the Defendant from challenging authenticity. At this hearing, the Defendant clarified the scope of his challenge to authenticity and the same was no longer queried by the Plaintiff. I do not see the need to impose the sanction. Here are my reasons.

B. BACKGROUND

2.  In gist, the Plaintiff’s pleaded case is that:

(1) The Defendant was the Plaintiff’s general manager. The Defendant was a trustee of the funds in the Plaintiff’s Hang Seng bank account (“the HS Account”) and he was instructed to use the funds for investment and financial management.

(2) From March 2011 to April 2012, the Defendant transferred a sum of USD2.55m (“the Funds”) from the HS Account to two currency exchange companies. The Funds were converted from USD to RMB and subsequently paid into bank accounts in Mainland China that belonged to or were controlled by the Defendant.

(3) From April 2011, the Defendant invested the Funds (and their proceeds) by acquiring investment products and advancing loans. He held the investments and the fruits thereof on trust for the Plaintiff, and reported to the Plaintiff from time to time on the state of investment. However, from around September 2014, the Defendant had stopped such reporting.

(4) In February 2022, the Plaintiff requested the Defendant to give an account of the investment and transfer the Funds and all the accrued proceeds back to the Plaintiff.

3.  As the Defendant failed to comply with the Plaintiff’s requests, the Plaintiff commenced the present action.

4.  One of the key allegations of the Plaintiff is that the Defendant had sent certain emails to its directors reporting on investments of the Plaintiff’s funds. The Defendant denied, amongst others, using the funds for investment or financial management or that he had ever made such reports.

5.  The Plaintiff’s list of documents disclosed items 3-16, being emails (mostly with attachments) (“the Emails”) purporting to be the Defendant’s reports on the investments.

6.  On 20 May 2024, the Defendant filed a notice pursuant to O.27, r.4(2) of the Rules of the High Court disputing the authenticity of the Emails (“the Notice”).

7.  On 12 July 2024, the Defendant filed his witness statement (“the Witness Statement”) in which he categorically denied “making any email report to the Plaintiff regarding the whereabouts of the Funds whatsoever”.

8.  On 13 September 2024, the Plaintiff took out a summons for leave to adduce expert evidence regarding the authenticity of the Emails (“the Expert Summons”).

9.  On 16 October 2024, the Plaintiff applied by summons to amend the Expert Summons to add the name of the proposed expert as well as to include the expert issues (“the Amendment Summons”). One issue for the proposed expert was whether the Emails were “authentic and have not been tampered with, by examining the corresponding electronic copies saved in the laptop provided by the plaintiff”.

10.  On 16 October 2024, the Expert Summons and the Amendment Summons came before the Master:

(1) The Master commented that it was not clear from the Notice whether the Defendant was disputing the existence of the Emails or suggesting that the contents of the Emails have been tampered with (“the Master’s Comment”).

(2) The Defendant’s solicitor who appeared at the hearing agreed with the Master’s Comment, and agreed to provide further and better particulars (“FBP”) of the Notice within 14 days on a voluntary basis.

(3) The Master thus made an order directing, amongst others: (a) the Defendant to file and serve FBP of the Notice on or before 30 October 2024;and (b) the parties to lodge proposed expert directions with the Court on or before 13 November 2024 for the adjourned hearing on 20 November 2024 (collectively, “the October Order”).

11.  On 13 November 2024, the Defendant filed a summons for extension of time for lodging the expert directions (“the Time Summons”).

12.  On 19 November 2024, the Defendant belatedly filed a set of FBP of the Notice (“the November FBP”), stating that:

(1) “Authenticity of the emails in question which were sent more than a year ago … cannot be proven even with the use of state of the art technologies”; and

(2) A PRC judgment has held that“2013年4月20日股东会决议已经 (2015) 深中法商终字第1691号审理，在该案中法院就未据此采信“靳哲使用公司利润”的主张；司法鉴定意见书中记载的邮件存在于被告电脑硬盘，无法与原始邮件核对；部分邮件被告曾经在前案中提交，但被告主张没有得到采信”。

13.  At the hearing on 20 November 2024:

(1) Not surprisingly, the Master considered that the FBP did not comply with the October Order;

(2) The Defendant’s solicitor accepted that the Defendant had filed the FBP out of time as the deadline was overlooked by the Defendant; and agreed to refile the FBP;

(3) The Master thus ordered, amongst others, that the Defendant do refile and serve FBP of the Notice by 4pm on 18 December 2024, specifying whether the Defendant was disputing the very existence of the documents specified in the Notice or alleging that certain parts of the documents were tampered with, and if it was the latter case, the Defendant should specify those parts. He further ordered that unless the Defendant did as ordered, the Notice was to be struck out and the Defendant would be debarred from challenging the authenticity of the Emails. The parties were to lodge proposed expert directions within 28 days after the Defendant’s refiling and service of the FBP. (“November Order”)

14.  On 4 December 2024, the Defendant file the present Notice of Appeal seeking to, amongst others,

(1) set aside the October Order out of time; and set aside the November Order (“FBP Appeal”); and

(2) dismiss the Expert Summons and Amendment Summons (“Expert Summons Appeal”).

15.  On 18 December 2024, the Defendant took out a summons to stay the execution of the October and November Orders; alternatively, to extend the deadline for re-filing the FBP to 14 days after the present appeal was disposed of. The application was dismissed by Master J Wong on 30 December 2024.

16.  As of this hearing, the sanction in the November Order has taken effect and the Defendant is debarred from challenging the authenticity of the Emails.

17.  On 3 March 2025, a Master adjourned the hearing of the Plaintiff’s Expert Summons and Amendment Summons to 23 June 2025 by consent.

C. LEGAL PRINCIPLES

18.  It is trite that an appeal from a master’s decision is to be dealt with by way of rehearing. The judge deals with the matter as if it comes before her for the first time.

19.  To obtain leave to appeal out of time, it is necessary to consider the length of delay, the reasons for delay, the merits of the intended appeal and the prejudice to the other party if extension of time is granted.

D. FBP APPEAL

20.  It is undisputed that the Defendant’s appeal against the October Order is about 3 weeks out of time and totally without explanation. If the Defendant really considered the learned Master’s approach to be objectionable, he should have appealed against the October Order right from the start. And yet, he lodged this appeal only after the purported compliance with the November Order. There are no merits to the appeal against the October Order. However, whether the October Order shall stand or be dismissed, it would not affect the outcome of this appeal.

21.  The appeal against the November Order relies on the same grounds as those for the October Order.

22.  Strictly speaking, I agree with Ms Ng, counsel for the Defendant, that the power to order further and better particulars is exercisable with regard to pleadings and not a document like the Notice: Order 18, rule 12(3). It can be exercised on the application of a party or, as in this, of the Master’s own motion.

23.  One can appreciate that, with the best of intentions and in the exercise of his case management powers, the Master tried to clarify the scope of dispute over the Emails. This may assist in narrowing down the scope of issues for the expert. The Master’s Comment was echoed by the Defendant’s own solicitor. Viewed in that light, the October Order was not unreasonable. Given the November FBP which were, without disrespect, incomprehensible, the Master was certainly entitled to seek clarification in the November Order.

24.  During the hearing of this appeal and confirmed in writing on the same day, Ms Ng, in answer to this Court’s query, confirmed that “the Defendant denies that he had ever sent item no.3 to 16 of the Plaintiff’s List of Documents (“Purported Emails”). The Plaintiff is put to strict proof thereof. All of the contents and existence of the Purported Emails are not admitted.” (“Defence Counsel’s Confirmation”)

25.  Counsel on both sides agreed that Defence Counsel’s Confirmation has made clear the scope of the Defendant’s challenge to the authenticity of the Emails. The parties have agreed to return to the Master for directions on expert evidence within 14 days from the date of this appeal hearing.

26.  Had the Defendant done what Ms Ng did before this hearing, it would have saved everyone’s time, effort and costs.

27.  That said, I find that the imposition of the unless order to be too draconian. The Notice was in a common form and quite clear in its terms – that the “authenticity” of the Emails was challenged. This would cover both the existence and contents of the Emails. If that was not clear enough, the Defendant’s witness statement has made clear that he had never sent those Emails. The Defendant never mentioned in his defence or witness statement that the Emails had been tampered with. In fact, the Plaintiff had no difficulty understanding the Defendant’s challenge to authenticity and proceeded to draft the expert directions in the Amendment Summons.

28.  Therefore, even though the November FBP were not useful, the Notice and the Defendant’s witness statement could still enable the Master to formulate the expert directions. It only means that the expert issues may be wider than the Master has hoped to be.

29.  The net position now is that the Defendant has provided FBP (out of time) which the Plaintiff has no further complaint and would enable the application for expert directions to move forward.

30.  I therefore set aside the unless order in the November Order with regard to FBP and treat Defence Counsel’s Confirmation as FBP filed pursuant to the November Order.

E. EXPERT SUMMONS APPEAL

31.  The only orders that the Master has given were case management directions regarding those 2 Summons. There is nothing to appeal against. Expert directions are still needed in the light of Defendant’s objection to authenticity of the Emails. This part of the appeal is totally unwarranted and ought to be dismissed.

F. COSTS

32.  Considering the overall position, the Defendant should bear the costs, given the indulgence granted by this Court regarding the FBP Appeal, which was necessitated by the Defendant or his solicitor’s own agreement to file FBP but failed to do so properly until this hearing.

33.  The Defendant should bear costs of the Expert Summons Appeal. There was a portion of this hearing which was spent on the proposed expert directions.

34.  The costs statements on both sides disclose a sum of $164,604 charged by the Plaintiff and $107,470 charged by the Defendant. These sums do not show a sense of proportion to the whole Appeal that has nil complexity. This appeal could have been handled by the same solicitors who had appeared before the Master. In the premises, I order (a) the Defendant to bear costs of this Appeal in the sum of $40,000; (b) 15 minutes of this appeal hearing be apportioned as costs for the expert directions, to be costs in the cause of the Expert Summons and Amendment Summons; (c) the costs orders in the October and November Orders shall stand.

G. ORDER

35.  I order as follows:

(1) The appeal against the October Order out of time is dismissed;

(2) The appeal against the November Order is allowed to the following extent:

(a) Paragraph 2 of the November Order as regards the unless order is set aside; and

(b) There be leave to the Defendant to provide FBP out of time and the FBP provided by way of Defence Counsel’s Comfirmation on 29 April 2025 [to be annexed to the draft order] shall stand.

(3) On a nisi basis, costs summarily assessed in the sum of $40,000 are to be paid by the Defendant to the Plaintiff for this appeal;

(4) Another 15 minutes of the hearing time of the appeal be apportioned as costs in the cause of the Expert Summons and Amendment Summons.

36.  I thank counsel for their assistance.