MOTOROLA SOLUTIONS CREDIT COMPANY LLC v. KEMAL UZAN AND OTHERS

HCA 2232/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2232 OF 2013

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D E C I S I O N

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1.  This is my decision on the plaintiff’s application for discovery by the 8th to 12th defendants.

2.  I deal with items 1, 2 and 3 together.  The plaintiff asks for documents concerning or relating to the formation of the 9th, 11th and 12th defendants.  The objection by the defendants is that these are confidential documents and the defendants are not in a position to produce them. 

3.  Any document under these three items and other items for which the claim of confidentiality is being made should be put in a sealed envelope for disposal at another hearing.  The defendants shall state the nature of the confidentiality claimed for each and every document alleged to be confidential. 

4.  Confidentiality is therefore not accepted as a ground of opposition.  These documents are discoverable for the purpose of enforcement of the Mareva injunction and to find out the true ownership of these companies.  I make an order in terms of items 1, 2 and 3. 

5.  I deal with items 4, 5 and 6 together.  Item 4 asks for the agreements pursuant to which the 8th and 10th defendants or any other person have agreed to act as nominal owners of HPF, AA Capital or Hijaz. Item 5 asks for documents evidencing the terms of any nominal ownership of these three companies.  Item 6 asks for documents concerning the beneficial ownership or control of these three companies. 

6.  Obviously they are discoverable for the same reason that it is necessary to look into the true ownership of these three companies so as to effectively implement the Mareva injunction.  I therefore order in terms of these three items.

7.  For items 7 and 8, I would effect the amendments that I have intimated for both of them; that is to limit the generality of all documents and all board minutes to the issue of beneficial interest and the issue of movement of funding.  Again, it is for the obvious reason of enforcing the Mareva injunction.

8.  I deal with items 9, 10 and 11 together.  Item 9 asks for all communications between Mr Cook, the 8th defendant, or Miss Kwong, the 10th defendant, on the one hand, and any director, officer or employee of HPF, AA Capital or Hijaz on the other concerning the beneficial ownership, management or control of the three companies.  Item 10 asks for all documents concerning or relating to communications with any other defendant directly or indirectly concerning the beneficial ownership, management or control of the same three companies.  Item 11 asks for all documents concerning or relating to the 1st to 7th defendants, including all electronic and written communications with the 1st to 7th defendants, for example, emails to/or from the addresses named in the item.

9.  For these three items, apart from confidentiality, the defendants also say that they are wide and vague.  However, I do not think that they are really wide or vague because they all say that the documents to be disclosed are documents that concern the beneficial ownership, management, or control of the three companies.  I therefore order discovery in terms of the requests.

10.  Item 12 asks for the corporate records showing the capital deposited by HPF, AA Capital and Hijaz investors and all dividends or other payments paid out by those companies.  This request is obviously on the beneficial ownership and the objection of irrelevancy cannot stand.  I would therefore make an order in terms of it, but I would also amend it by adding after the word “investors” in the second line the following words, namely “and/or beneficial owners” and I order in terms of this item as amended.

11.  Item 13 asks for all documents evidencing or relating to communications with Mahesh Harrilela, Roger Yip, Tobias Hallin or Alan Siu concerning the beneficial ownership, management or control of the three companies.  This request is really for investigation of matters outside the scope of this action and I would decline the request.  Item 13 is not accepted. 

12.  I deal with items 14 and 15 together.  Item 14 asks for all documents, evidencing or relating to the transfer of property with a value in excess of HK$10,000 on behalf of the three companies from 1 January 2012 to the present.  Item 15 asks for all banks, wire transfer and account statements for the three companies, also from 1 January 2012 to the present.  Again, they deal with movement of funds and it is to verify whether the defendants’ claim of lack of any assets worth HK$10,000 in Hong Kong is true.  There is evidence which tends to suggest that the defendants’ claims are not correct, hence I allow items 14 and 15 in terms.

13.  I deal with items 16 and 17 together.  Item 16 asks for all documents in the possession, custody or control of HPF, concerning or relating to Jordan Dubai Islamic Bank.  Item 17 asks for all documents concerning or relating to communications with any governmental or regulatory authority in the Kingdom of Jordon concerning the ownership or control of HPF or AA Capital.

14.  These two requests are for documents that are not for the enforcement of the Mareva injunction and appear to go outside the scope of this action.  I therefore do not accept them.

15.  I deal with items 18, 19, 20 and 21 together.  Item 18 asks for all documents concerning or relating to Miss Kwong’s communication with representatives of HPF, AA Capital and/or Hijaz, as set forth in her third affidavit dated 19 December 2013, who reside overseas, including but not limited to Amman, Jordon, including all emails, phone logs, or any other correspondence of any kind.  Item 19 deals with documents sufficient to identify all income, wages, bonuses, dividends, gifts or other transfers to Miss Kwong in connection with or related to HPF, AA Capital, Hijaz or the 1st to 7th defendants, including but not limited to any employment contract, ownership documentation and bank statements.  Item 20 asks for documents sufficient to identify all income, wages, bonuses, dividends, gifts or other transfers to Mr Cook in connection with or related to HPF, AA Capital, Hijaz or the 1st to 7th defendants, including but not limited to any employment contract, ownership documentation and bank statements.  Item 21 asks for all documents, including all emails, phone logs, or any other correspondence of any kind evidencing or relating to communications between Mr Cook and Stuart Salter concerning the ownership or control of HPF, AA Capital, Hijaz or directly or indirectly related to the 1st to 7th defendants. 

16.  For items 19 and 20, instead of ordering for discovery, I would revise these two items by requiring the 8th and 10th defendants to go on affidavit to disclose to the best of their belief, with the grounds of belief, who paid them for all the services they rendered as a nominee holder for the interests in the 9th, 11th and 12th defendants.  The disclosure shall be in the same affidavit for verification of the discovery that I am now dealing with.

17.  For items 18 and 21, they are obviously relevant to the beneficial interest.  I order in terms of them.  I grant the defendants liberty to apply for an amendment for revocation or exclusion of the phone logs from discovery if they do not wish to disclose them pursuant to this order. 

18.  For item 22, it does not appear to be relevant for enforcing the Mareva injunction and I do not accept it for the purpose of this application.

19.  Each of the 8th to 12th defendants do, within 21 days from the date of this order, serve an affidavit stating whether he or she has at any time in his/her possession, custody or power of the documents that I have ordered and serve a copy of the documents which are in their possession, custody or power. 

20.  I order that the costs of this application be in the cause.

(Discussion between court and counsel)

21.  For further and better particulars, I make an order in terms of the request (a), (b) and (c) and the new (d). 

22.  I make no order as to costs for the application for particulars, because it is not preceded by a letter of request.

(L. Chan) Judge of the Court of First Instance   High Court