LEUNG KWAI LING v. HK GLORY PROPERTIES LTD

HCA 347/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 347 OF 2013

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DECISION

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I.  INTRODUCTION

1. I refer to my two Reasons for Decision handed down on 3 May 2013 and 16 May 2013 (“16/5/13 Reasons”) respectively in the present action. For easy reference, I shall adopt the abbreviations therein.

2. On 22 February 2013, the plaintiff commenced the present action against the defendant.

3. On 15 April 2013, the defendant issued D’s Summons to inter alia strike out the plaintiff’s Statement of Claim in the present action, and apply for RPO and RAO orders against the plaintiff (see paragraph 4 of the 3/5/13 Reasons). On 15 April 2013, the plaintiff filed the affidavit of Robert Yau Chung Wong (“Mr Wong”) in support of D’s Summons.

4. The substantive hearing for argument in respect of D’s Summons is scheduled to be heard on 1 August 2013.

5. At the hearing on 16 May 2013 which resulted in the 16/5/13 Reasons, I directed that the plaintiff’s affirmations filed on 30 April, 6 May and 6 May 2013 shall stand as her affirmations in opposition of D’s Summons, and gave further directions for the filing and service of supplemental affirmation in opposition by the plaintiff as well as affirmation in reply by the defendant.

6. Pursuant to my directions, the plaintiff filed her two affirmations in opposition on 28 and 30 May 2013 respectively, and the defendant filed the 2^nd affidavit of Mr Wong in reply on 13 June 2013.

7. On 3 July 2013, the plaintiff issued a summons (“P’s 4^th Summons”) for an order that:

(a)  the defendant do within 7 days provide “further and better particulars with supporting exhibits” to verify that the following contents of the affidavits filed by the defendant in the present action and “previous cases” were true:

(i)   all majority owners were required to pay back the auction proceeds to the purchaser defendant;

(ii)  “the deal is fair, open, transparent”;

(iii)  there are no other court cases from other Lai Sing Court owners against the defendant and/or guarantors;

(b)  the defendant do provide copies of (i) all cheques from the trustees to the defendant “paying to [the defendant] $1.6 billion of auction proceeds”, and (ii) audited certificate showing the total auction proceeds taken back by the defendant, and the total compensation and profits paid to all Lai Sing Court owners;

(c)  failing compliance with (a) and (b) above, the contents in all affidavits of the defendant be struck out.

8. On 5 July 2013, the plaintiff issued another summons (“P’s 5^th Summons”) for an order that:

(a)     the defendant do within 7 days provide “further and better particulars with supporting exhibits about the following contents of [the defendant’s] affidavits to see if [Mr Wong] is so authorised; [and] to see if the deal is fair and open”:

(i) certified copies of the board resolutions of the defendant authorising Mr Wong to make the affidavits in this case and “previous cases”, and authorising Mr Wong “and 2^nd director” to sign the Development Agreement, the Supplemental Development Agreement, the Sale and Purchase Agreement and the Deed of Assignment for Lai Sing Court;

(ii) certified copies of annual accounts for “LSC RP” for 14 years from 2000 to 2013;

(iii) certified copies of annual accounts for the defendant for 14 years from 2000 to 2013;

(b)     leave for the defendant to file more affirmations to answer Mr Wong’s 2^nd affidavit and to prove that the plaintiff’s “previous cases” are not frivolous, vexatious or an abuse of process.

9. On the same day, the plaintiff filed her affirmation in support of P’s 5^th Summons. By such affirmation, the plaintiff claims that she requested the further and better particulars and the documents as sought in P’s 5^th Summons to enable her to prove that (a) a large part of the contents of the affidavits filed by the defendant in the present action and in the “previous cases” were false and untrue lies, and (b) the claim that “the deal is fair, open, transparent” was an untrue lie. The plaintiff also wants to check whether Mr Wong and “the 2^nd director” were authorised to make the affidavits and sign the documents as referred to in P’s 5^th Summons. She further claims she needs the information and the documents she requested to prove that the defendant committed fraud, theft, deception and other unlawful acts, and to oppose D’s Summons. The reason the plaintiff puts forward for her request for leave to file more affirmations is a need to provide proof that her legal cases were not frivolous, vexatious or an abuse of process, and to show that the defendant had been lying on some main points.

10. On 8 July 2013, the plaintiff filed yet another summons (“P’s 6^th Summons”) for the following orders:

(a) an order that the assignment of “our Lai Sing Court (LSC) unit of 13 Block B to the defendant (D) is void and cancelled with effect from 22-2-2005 retrospectively; and that the related Deed of assignment for our LSC unit dated 22-2-2005 is void + cancelled with effect from 22-2-2005 retrospectively”;

(b) an injunction be issued immediately against the defendant to stop and end “D’s strike out, RPO & RAO applications against me + my cases”;

(c) an order that the defendant and their solicitors are liable for contempt of court (i) for the defendant’s acts in making false statements in the affidavits and summons of the defendant in HCA366/2012 and in the present action, and (ii) for conspiracy to “act against compulsory sale court order of 2004 for LSC & our LSC unit”;

(d) an order that the defendant and the defendant’s solicitors are liable in obstructing the course of justice for reasons in (c)(i) above and for striking out the plaintiff’s “previous cases” and the present case;

(e) a freezing order be placed on all assets of the defendant for the total amount of her claims;

(f) judgment or summary judgment be given against the defendant.

11. On the same day, the plaintiff filed her affirmation in support of P’s 6^th Summons, the contents of which will be discussed below.

12. On 8 and 9 July 2013, the plaintiff lodged her skeleton submissions, chronology of events and list of authorities by fax.

II.  P’s 4^TH AND 5^TH SUMMONSES

13. I propose to deal with the P’s 4^th and 5^th Summonses together since they both seek inter alia “further and better particulars with supporting exhibits” and production of copies of documents.

14. First of all, I am of the view that the plaintiff is not entitled to request for further and better particulars in respect of the contents of affidavits. Order 18 rule 12(3) of the Rules of the High Court (“RHC”) empowers the court to order a party to serve further and better particulars of any claim, defence or any matter in his pleadings, or in any affidavit of his ordered to stand as a pleading, or a statement of the nature of the case on which he relies. Here, extension of time until 14 days after the final disposal of D’s Summons, P’s 1^st Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons has been granted for the defendant to file and serve their Defence, so there is no pleading by the defendant as yet. Mr Wong’s 2 affidavits in the present action are filed for the purpose of D’s Summons, and there is no order that they stand as a pleading. In the circumstances, there is no merit to the plaintiff’s request for further and better particulars of the affidavits filed by the defendant (see also Hong Kong Civil Procedure 2013 Vol.1 para.1/4/5 at pp.32-33).

15. In her written skeleton submissions and list of authorities, the plaintiff relies on section 41 of the High Court Ordinance Cap.4 (“HCO”) in support of the aforesaid requests for further and better particulars of the contents of the defendant’s affidavits. In my view, such provision is irrelevant since it provides for pre-action discovery (in contra-distinction to further and better particulars requested in the course of proceedings that have been commenced). Here, of course, the plaintiff has already commenced the present action against the defendant by the time of Ps’ 4^th and 5^th Summonses.

16. Secondly, even if one were to view P’s 4^th and 5^th Summonses as requests for discovery of documents, still I am not persuaded that such requests are justified.

17. For specific discovery under Order 24 rule 7 of the RHC, the applicant must state in the supporting affidavit that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it relates to one or more of the matters in question in the cause or matter. But such specific discovery is limited by Order 24 rule 8 of the RHC such that if the court is satisfied discovery is not necessary, or not necessary at that stage of the cause or matter, it may dismiss or adjourn the application, and shall in any case refuse to make any such order if and so far as it is of the opinion that discovery is not necessary either for disposing fairly of the cause or matter or for saving costs.

18. For inspection of documents referred to in affidavits, Order 24 rule 10(1) of the RHC provides that a party to any cause or matter shall be entitled at any time to serve a notice on any other party in whose affidavits reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof. Likewise, under Order 24 rule 13(1) of the RHC, no order for the production of any document for inspection or to the court or for the supply of a copy of any document shall be made under, say, Order 24 rule 10(1) of the RHC unless the court is of the opinion that the order is necessary either for fairly disposing of the cause or matter or for saving costs.

19. To put the matter in context, Mr Wong’s 2 affidavits filed in the present action are to support D’s Summons. They contain the evidence that the defendant relies for their application to strike out the plaintiff’s pleadings/claim and to seek RAO and RPO orders against the plaintiff. It is up to the defendant to decide what affidavit evidence they wish to adduce for such purpose. If the affidavit evidence they put forward is lacking in any material respect, it is open for the opposing party (ie the plaintiff) to make submissions to attack such defect if she so wishes. But it is not for her to dictate what evidence should be included in the defendant’s affidavit evidence, or to fish for information or documents from the defendant to feed her challenge to their affidavit evidence.

20. As borne out by P’s 4^th and 5^th Summonses and the plaintiff’s supporting affirmation, she has sought the requested documents in order to check the contents of Mr Wong’s affidavits and to check whether “the deal is fair and open”, and she wants to have sight of the requested documents to find evidence to prove that what Mr Wong stated in his affidavits were lies, that the defendant’s case was false, and that the defendant committed crimes and wrongs, and further to prove her case was not frivolous, vexatious and/or an abuse of process. In my view, the plaintiff is plainly fishing for evidence to bolster her own case, and hence her request for documents is liable to be dismissed.

21. Further, in respect of Order 24 rule 10 of the RHC, the plaintiff has not pointed to any direct allusion to the requested documents in Mr Wong’s 2 affidavits filed in the present action, but the reference in such affidavits must to be to a document as opposed to a dealing or transaction. Where a document is not specifically mentioned its existence is prohibited from being inferred (see Zida Technologies Ltd v Tiga Technologies Ltd & ors [2001] 3 HKLRD 698 and Taihan Electrirc Wire Company Limited & anor v Lee Chi Yuen Arctic HCA454/2013, Au-Yeung J (unreported, 5 July 2013) at paras.18-20).

22. I also bear in mind that the present outstanding applications due to be heard on 1 August 2013 are D’s Summons (for striking out the plaintiff’s pleadings/claim and issuing RAO/RPO orders against the plaintiff), P’s 1^st Summons (for entering default judgment) and paragraphs 1, 3 and 4 of P’s 2^nd Summons (for dismissing D’s Summons, issuing RAO/RPO orders against the defendant, and dismissing the defendant’s requests for all court orders). Given that these applications are usually amenable only to plain and obvious cases, and further given that pleadings have not been closed pending the adjudication of D’s Summons, I am of the view that at this stage of the proceedings the discovery sought is not necessary either for disposing fairly of the cause or matter or for saving costs. Should D’s Summons be dismissed after the substantive hearing on 1 August 2013, there will be time thereafter for the parties to file pleadings and Lists of Documents. But if the defendant succeeds in respect of D’s Summons, there is a real possibility that discovery may not be necessary at all.

23. Since I am not convinced the further and better particulars and/or the discovery/inspection of documents sought by the Plaintiff are justified, the corresponding applications under P’s 4^th and 5^th summonses are dismissed. It follows there is no need for the plaintiff to file further affirmation to address on information and documents that she seeks from the defendant.

24. But should the plaintiff be allowed to file further affirmations to answer Mr Wong’s 2^nd affidavit and to prove that her “previous cases” are not frivolous, vexatious and/or an abuse of process? The plaintiff has not been able to say with any degree of clarity what factual matters she needs to address in any further affirmation apart from saying that Mr Wong’s 2^nd affidavit contains lies. But the fact that she disagrees with the contents of Mr Wong’s 2^nd affidavit is not enough. In any event, insofar as the plaintiff submits that the Statement of Claim and her affirmations already filed in the present action fully set out the basis of her claim and her causes of action, and given that I have allowed her to rely on her affirmations filed on 30 April and 6, 28 and 30 May 2013 to oppose D’s Summons, and also bearing in mind that the defendant is entitled to file affidavit in reply to her affirmations in opposition, there is little justification for another round of affidavits.

25. As regards the plaintiff’s alleged need to prove that her “previous cases” are not frivolous, vexatious and/or an abuse of process, this is something that ought to have been addressed (if at all) in her affirmations in opposition filed in May 2013. Again, she has not condescended to explain with any clarity why further affirmation is required insofar as she claims that the Statement of Claim and her affirmations as filed in the present action do clearly set out her causes of action. This leads inexorably to the same conclusion that leave should not be granted for another round of affirmations.

26. I now turn to the various reliefs sought in P’s 6^th Summons.

27. As apparent from the 3/5/13 and 16/5/13 Reasons, the plaintiff has issued a number of interlocutory summonses even before P’s 4^th, 5^th and 6^th Summonses. In P’s 2^nd Summons, the plaintiff has asked for RAO against the defendant “to stop [their] current & future RAO and RPO applications against [her], and to stop [their] current & future strike out applications in or against [her cases] in court”, and also for dismissal of all requests for court orders by the defendant, including strike out orders, RAO, RPO, and orders for extension of time for filing the Defence. These applications will be heard on 1 August 2013.

28. Not content with that, the plaintiff has issued P’s 3^rd Summons to ask the court to issue RAO against the defendant to stop all applications by the defendant “for strike out order, RPO, RAO against [the plaintiff]” under the Practice Direction for RAO. For reasons explained in paragraph 5(a) of the 16/5/13 Reasons, such application has been dismissed for being duplicative.

29. Here, by P’s 6^th Summons the plaintiff again seeks an injunction against the defendant to stop and end “[their] strike out, RPO & RAO applications against [her and her] cases”. Plainly, this seeks substantively the same relief as that in P’s 2^nd Summons (and in P’s 3^rd Summons that has been dismissed). It is duplicative and falls to be dismissed.

30. As evident from paragraphs 9-13 of the 3/5/13 Reasons and paragraphs 3-5 of the 16/5/13 Reasons, the plaintiff has time and again made pre-emptive attempts to put a stop to D’s Summons before the substantive hearing of such summons, but I have explained why such pre-emptive applications are inappropriate. The plaintiff submits it is unfair since the draconian nature of the reliefs sought in D’s Summons has caused her great anxiety. In my view, this is not a sufficient reason to summarily put an end to D’s Summons. Indeed, I have allowed paragraphs 1, 3 and 4 of P’s 2^nd Summons to be heard on 1 August 2013 at the same time as D’s Summons.

31. Since D’s Summons and paragraphs 1, 3 and 4 of P’s 2^nd Summons are still pending adjudication, most of the plaintiff’s submissions on the merits of those summonses (eg the sufficiency of the causes of action in the Statement of Claim, the cases/authorities the plaintiff relies on, the alleged errors in Mr Wong’s affidavits, and other factual matters pertaining to Lai Sing Court) that support P’s 2^nd Summons and oppose D’s Summons should properly be canvassed at the substantive hearing of such summonses on 1 August 2013. As a matter of case management discretion, it is unnecessary and inappropriate to deal with such matters now, and I see no basis for arresting D’s Summons at this stage when it has been set down to be heard and argued at the hearing on 1 August 2013. 

32. The plaintiff claims that the defendant’s application to strike out her claim (ie D’s Summons) is oppressive and causes delay in breach of the underlying objectives under Order 1A of the RHC. But the substantive hearing of D’s Summons is only about 2 weeks away, and the issue as to whether the plaintiff’s claim is viable and deserves to be continued will be determined then.

33. For the same reason, the plaintiff’s application for an order that the defendant and their solicitors be held liable to her for obstructing the course of justice for attempting to strike out her claim must fall to be dismissed. Insofar as the plaintiff’s “previous cases” have already been determined by the court, it is not for me to re-open them even though she suggests in the course of her submissions that some of those decisions were wrongly decided. Even if the plaintiff perceives that some court decisions in her “previous cases” have been wrongly decided, insofar as they are final decisions that have not been overturned on appeal, she cannot mount direct or collateral attack against such decisions. In respect of the present action, on the available materials it is plainly inappropriate to grant any order at this stage (when D’s Summons has yet to be adjudicated) that the defendant and their solicitors be made liable to plaintiff.

34. Insofar as the plaintiff suggests that the defendant is not entitled to rely on affidavit evidence for striking out the Statement of Claim under the Order 18 rule 19(1)(a) of the RHC, it should be noted that in D’s Summons the defendant seeks to strike out the Statement of Claim also on the bases that it is frivolous and vexatious and it is an abuse of the process of the court. Affidavit evidence is ordinarily permissible to support these grounds (see Hong Kong Civil Procedure 2013 Vol.1 para.18/19/3 at p.417). There is no merit to the complaint against use of affidavit evidence by the defendant.

35. I also consider there is no merit to the plaintiff’s submissions that Order 18 rule 19 of the RHC is only applicable for striking out “any pleading” and not to the whole of her Statement of Claim. A Statement of Claim is a pleading for the purpose of Order 18 rule 19 of the RHC, and is liable to be struck out if any of the grounds specified therein is satisfied.

36. As regards the plaintiff’s oral submissions that because her pleaded claim exceeds HK$1 million, she has a viable claim in the Court of First Instance, which cannot be an abuse of process. I am unable to accept this argument. A proper civil claim in excess of HK$1 million invokes the jurisdiction of the Court of First Instance, but it does not follow such claim is necessarily meritorious. Whether the plaintiff’s claim is liable to be struck out is the very issue that needs to be resolved at the hearing of D’s Summons on 1 August 2013.

37. As regards the plaintiff’s application for an order that the defendant and their solicitors be held liable for contempt of court and for obstructing the course of justice by reason of such contempt, in my view these applications must also be dismissed. The plaintiff relies on Order 41A of the RHC that concerns statements of truth, but such provision for statements of truth is not relevant to summonses and affidavits. In any event, D’s Summons (together with the supporting affidavits) has not yet been adjudicated upon, and the fact that the plaintiff disagrees with their contents is insufficient basis for commencing contempt proceedings at this stage. The plaintiff also submits that the defendant and their solicitors are in contempt of court because they rely on lies and untruths to strike out her claim and prevent her from having a fair trial. But, as I have already explained, an order to be made on such premise is premature pending the adjudication of D’s Summons. Further, notwithstanding the plaintiff’s reference to section 11 of the Land (Compulsory Sale for Redevelopment) Ordinance Cap.545, whether she is able to demonstrate a reasonable cause of action for conspiracy between the defendant and the trustees is something that needs to be resolved at the hearing of D’s Summons rather than under any pre-emptive application in P’s 6^th Summons.

38. The plaintiff seeks an order that the assignment of her unit at Lai Sing Court has been avoided and cancelled with effect from 22 February 2005. In her supporting affirmation filed on 8 July 2013, she claims the defendant was in breach of contract in failing to pay the purchase price of over HK$10 million to her and Lee Yin Kei in 2005, so the Deed of Assignment was fraudulently obtained, and must therefore be regarded as having been avoided and cancelled with effect from 22 February 2005. Although the plaintiff in her written skeleton submissions relies on the Misrepresentation Ordinance Cap.284, Crimes Ordinance Cap.200 and the Theft Ordinance Cap.210, I am unable to see how she is entitled to final declaratory relief on an interlocutory basis.

39. Next, the plaintiff seeks immediate summary judgment against the defendant. In the plaintiff’s supporting affirmation filed on 8 July 2013, the basis of such application is that the defendant had no reasonable cause to strike out her claim, and that D’s Summons was unfair to her. As explained above, D’s Summons has yet to be adjudicated by the court. Pending the hearing of D’s Summons on 1 August 2013 and eventual determination by the court, it cannot be said at this stage there is no reasonable cause to strike out the plaintiff’s pleading and her claim. The plaintiff’s ground for summary judgment to be granted immediately in her favour (which is tantamount to dismissal of D’s Summons before it is heard on 1 August 2013) cannot be supported, and hence such application falls to be dismissed.

40. As regards the plaintiff’s request for a freezing or Mareva order over the defendant’s assets under section 21L of the HCO and Order 29 of the RHC (citing Derby & Co Ltd & ors v Weldon & ors No.2 [1989] 1 All ER 1002), apart from a bare assertion in her supporting affirmation filed on 8 July 2013 that she feared the defendant would move their assets overseas or transfer their assets or wind up the company, there is simply no sufficient factual basis to support such concern. I am of the view that the plaintiff has not established the elementary threshold of demonstrating any risk of dissipation of assets. In all the circumstances, there is no merit to P’s 6^th Summons.

41. I have set out above the essential matters that have led me to the conclusion that the reliefs sought in P’s 4^th, 5^th and 6^th Summonses cannot be supported. The plaintiff has raised a wide range of matters in her oral and written submissions. Suffice to say that I have given them careful consideration, but they do not dissuade me from the above conclusion.

42. I should add that the plaintiff in her skeleton submissions and affirmations claim she makes her submissions, applications and the present claim on behalf of herself and Lee Yiu Kei. In this action, the sole plaintiff is the plaintiff herself, and the court does not accept that Lee Yiu Kei is co-plaintiff or a claimant in the present action.

IV.  CONCLUSION

43. In conclusion, P’s 4^th, 5^th and 6^th Summonses are dismissed. There is no reason why costs should not follow event. I grant a costs order nisi that costs of P’s 4^th, 5^th and 6^th Summonses be paid by the plaintiff to the defendant to be taxed if not agreed.