FUNG PO WAH v. TICKTOCK GRAPHIC EQUIPMENT CO LTD AND OTHERS

HCMP 1915/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1915 OF 2008

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D E C I S I O N

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The summonses

1.  I have before me two summonses, both issued on 8 May 2009by the petitioner in this petition under section 168A of the Companies Ordinance, Cap. 32.  One summons seeks specific discovery, the other is for leave to adduce expert evidence.

The background matters and the relevant issue

2.  I will first state the relevant background matters to these applications.

3.  The petitioner and the 2^nd respondent are the only shareholders in Ticktock Graphic Equipment Company Limited (“the Company”), with the petitioner holding 20% shares and the 2^nd respondent 80%.  The Company was and is the sole distributor in Hong Kong of a German company which manufactured paper folding machines.  The petitioner and 2^nd respondent were also the only directors until February 2008 when the 3^rd respondent, who is the half-brother of the 2^nd respondent, was appointed as a director.  The petitioner was removed as a director in September 2008, and this petition was presented shortly thereafter.

4.  It is alleged by the petitioner that the Company was a quasi-partnership and the affairs of the Company were conducted by the 2^nd respondent and the 3^rd respondent in a manner unfairly prejudicial to him.  One of the breaches of fiduciary duties alleged was that the 2^nd respondent had transferred business or loans or credits of the Company to the 3^rd respondent or to Euro Deutsche Office Supplies (“EDOS”), of which the 3^rd respondent is the sole proprietor.  The petitioner seeks among other reliefs that the respondents be ordered to purchase his shares in the Company, an inquiry as to the accounts of the Company from the year 2001/2002 to date, and that the respondents be ordered to account for any loss or misappropriation of the assets of the Company from the year 2001/2002 with interest or pay exemplary damages.

5.  In answer to the allegation concerning EDOS, the 2^nd respondent has deposed to these matters in his affirmations:

(1) EDOS was set up in 1997 with the petitioner’s knowledge and consent as a strategy to resist parallel import of products to Hong Kong by distributors in Taiwan and China.  EDOS did so by making parallel export of identical products to Taiwan and China at competitive prices, so it would not be profitable for those distributors.

(2) The Company provided funding and resources for the operation of EDOS.  EDOS purchased products from the Company and sometimes from other suppliers which carry products not imported by the Company and then made parallel export of the products to Taiwan and China at a slightly increased price.

(3) All surplus or profits made by EDOS were transferred to the Company.

(4) EDOS was registered in the name of the 3^rd respondent who held his interest on trust for the Company.

6.  In reply, the petitioner asserted that he played no role in EDOS.  Although he was aware of its existence, he did not agree the Company’s business could be properly protected by the operation of EDOS, and there is no evidence to show that all the profits of EDOS would be transferred back to the Company.

7.  On 15 December 2008, I made an order giving leave to the 2^nd and 3^rd respondentsto file and serve evidence in respect of their allegations that profits of EDOS would be transferred back to the Company.

8.  Pursuant to that order, the 2^nd respondent filed his 2^nd affirmation on 18 February 2009 deposing to the source of funds of EDOS, and the total amount of payments out from EDOS.  The period covered was from 2001/2002 to 2007/2008.  The total source of funds amounted to $13,025,866, whereas the total amount of payments out was $12,992,140.  According to the respondents’ evidence, the balance sheet of  EDOS as at the year ended 31 March 2009 showed there was cash in bank of $14,242.  They claimed this showed that the surplus or profits made by EDOS were transferred back to the Company.

Discovery made by the respondents to date

9.  Documentary evidence was produced to support the figures given in the 2^nd respondent’s 2^nd affirmation.  The accounting documents disclosed so far are over 1,500 pages, taking up 4 lever arch files.

10.  Of the Company, these documents were disclosed:

(1) ledger/balance sheet of current accounts from 2001/02 to 2006/07;

(2)    profit and loss accounts for 2005/06;

(3)    bank statements from July 2006 to December 2007;

(4)    bank statements from July 2001 to March 2008; and

(5)    petty cash record from April 2001 to March 2008.

11.  Of EDOS, these documents were disclosed:

(1) financial statements from 2000/01 to 2006/07 prepared by its authorised tax representative;

(2) tax returns from 2000/01 to 2007/08 prepared by its authorised tax representative;

(3) table showing bank/cash transferred from the Company to EDOS from April 2001 to March 2008;

(4) table showing payments from EDOS to the Company’s suppliers from 2002/03 to 2007/08;

(5) remittance advices and invoices for payments by EDOS to the Company’s suppliers from 2002/03 to 2007/08;

(6)    general ledger for 2001/02;

(7)    table showing total sum transferred from EDOS to the Company’s bank account from April 2001 to March 2008;

(8)    bank statements from April 2001 to March 2008; and

(9)    table showing collected payments from customers in China and brought back to Hong Kong, headed “RMB cash receipt transferred from EDOS to Company petty cash book from April 2001 to March 2008”.

12.  Of the financial documents of EDOS prepared by its authorised tax representative in items (1) and (2), unsigned copies were produced.  Items (3), (4), (7) and (9) were tables compiled by the respondents.  The source documents for the compilation, such as sales invoices, records of payment, suppliers’ invoices were not disclosed.

13.  As the respondents have not been able to locate the remittance advices and invoices for payments by EDOS to the Company’s suppliers from 2001/02, they have disclosed instead the general ledger of EDOS for 2001/02.  They did not disclose the general ledger of EDOS for the subsequent years.

The discovery sought

14.  In response to the 2^nd respondent’s 2^nd affirmation and the financial documents disclosed, the petitioner engaged a certified public accountant to carry out a critical review and analysis and exhibited a copy of the review report dated 6 March 2009 to the petitioner’s 3^rd affirmation.  This accountant rendered an opinion that notwithstanding the 2^nd respondent’s 2^nd affirmation and the very substantial documents disclosed, the 2^nd respondent “fails to show and prove (1) what were the amount of profits for each financial year; and (2) such profits have been transferred back to [the Company] for each financial year as claimed.”

15.  The review report is in the nature of expert evidence, for which no leave was obtained from the court for its production.

16.  Hence, the present summonses were issued by the petitioner on 8 May 2009 for specific discovery and for leave to adduce expert evidence.

17.  The petitioner seeks discovery of these financial statements set out in the schedule to the summons:

A - relating to the Company

1. signed auditors’ reports from 2001 to date

2. profit tax computation from 2001 to date

3. profit tax returns from 2001 to date

4. all sales invoices issued by the Company to EDOS from 2001/02 to 2007/08

B - relating to EDOS

5. signed profit and loss accounts/financial statements/balance sheets of EDOS to the Inland Revenue Department from 2001/02 to 2007/08

6. signed tax returns from 2001/02 to date filed with the Inland Revenue Department

7. corresponding final assessment/demand notes of the Inland Revenue Department for 2001/02 to 2007/08

8. receipts for payment of tax arising from the profits of EDOS

9. all sales invoices issued by EDOS to its customers from 2001 up to 2008

10.   all payment records showing the settlement of sales invoices by customers of EDOS

11.   suppliers’ invoices of the Company and remittance advices of EDOS for 2001/02 to2007/08

12.   records showing the profits of EDOS in each and every sales activity and transaction from 2001/02 to 2007/08

13.   general ledger of EDOS for 2002/03 to 2007/08

18.  In support of the summonses for discovery and leave to adduce expert evidence, the petitioner filed his 4^th and 5^th affirmations.  The respondents did not file any affirmation in answer.

19.  The respondents did not raise any dispute that the documents sought in the discovery existed, or that they are or have been in the possession, power or custody of the Company or the firm of accountants who are the auditors of the Company, Fung’s Consultant Company, which is the firm of the petitioner’s elder brother.

20.  I do not think it can seriously be disputed that the documents sought are relevant to the issue whether profits of EDOS were transferred back to the Company.

21.  What is at issue is whether the documents sought are necessary for the fair disposal of the matter in issue or for saving costs.  I have discretion to exercise whether to order discovery.

Exercise of discretion on discovery

22.  I think it pertinent to have regard to the substantial discovery already given.  Much was made in the review report, which I have read de bene esse, that the respondents have not disclosed all the source documents.  That was repeated in the submissions made by the petitioner’s counsel in this hearing.  To require disclosure of all the source documents sought over an eight-year period is far too onerous.  Discovery must, I emphasise, be approached with a sense of proportion.  Unless there is cogent reason that secondary evidence would not bring about fair disposal of this issue, I am not inclined to order disclosure of primary source documents which would be voluminous.  It would not be justifiable to incur a great deal of time and costs for massive discovery of virtually all supporting documents of each and every transaction conducted by EDOS over an eight-year period merely because of the petitioner’s belief that “the more relevant documents were disclosed by the 2^nd respondent or 3^rd respondent relating to [the Company] or EDOS, the more discrepancies could be found that the 2^nd respondent or 3^rd respondent was not telling the truth”.

23.  The reason for seeking primary source documents is to verify the figures in the tables compiled by the respondents which have been disclosed.  I note the criticisms made in the review report, that the financial documents disclosed by the respondents in these proceedings are less that what would be required to be made available in an audit conducted in accordance with the Hong Kong Standards on Auditing.  Nevertheless, the figures in the tables were taken from financial statements of EDOS prepared by a firm of accountants, which happened to be the firm of the petitioner’s brother, who also prepared the Company’s financial statements and arranged for audit.  There is nothing on the available evidence to indicate any irregularity or inadequacy in the way financial statements were prepared by this firm of accountants who were EDOS’s authorised tax representative and had arranged for the audit of the accountsof the Company.

24.  I turn to consider each item of the documents sought in the summons.

25.  Of the financial documents of the Company, I will order discovery of items A1, 2 and 3 only.  For item A1, being signed auditors’ reports from 2001 to date, under the provisions of Cap. 32, such reports should be laid before a company at an annual general meeting, a member of the company is entitled to a copy, and the company is required to preserve proper books of accountsfor 7 years.  Items A2 and 3, showing the profit tax computation of the Company from 2001 to 2008, are relevant and necessary documents in respect of the issue whether the profits of EDOS were transferred back to the Company.

26.  I decline to order discovery of item A4 and other primary source documents sought in respect of EDOS, being items B9, 10, 11 and 12, for the reasons given earlier.  I will only order discovery of item B13, being the general ledger of EDOS from 2002/03 to 2007/08, as I regard the general ledger sufficient for the purpose of verifying the figures in the financial statements of EDOS which formed the basis of the tables compiled by the respondents.

27.  As for the reason for seeking documents in items B5 to 8, this is because the financial statements of EDOS and the tax returns disclosed were unsigned.  The point was made in the review report it is not known if these documents were the final version submitted to the Inland Revenue Department by EDOS.  I order discovery of items B5, 6 and 7.  I decline to order disclosure of B8 as I regard the items in B5 to 7 sufficient to establish the final version of the accountingrecords submitted to the Inland Revenue Department.

28.  In respect of the documents which the respondents are required to disclose, these documents are to be disclosed in a supplemental list of documents to be filed and served by the respondents and verified on affidavit, stating, in respect of those documents which were in their possession but are no longer the case, when they parted with possession and what has become of the same.  I will hear counsel for the respondents on the time required to file the supplemental list and verifying affidavit.

29.  I will also grant leave to the petitioner to inspect the documents disclosed within 7 days of the filing of the supplemental list.

Expert evidence

30.  The petitioner submitted that the expert evidence contained in the review report has met the requirements of necessity, relevance, and probative value for leave to be granted.

31.  Having regard to the earlier order on specific discovery, if expert evidence is to be allowed, the review report would have to be supplemented by a further report to deal with the additional documents to be made available.

32.  The respondents contended expert evidence is unnecessary, in that the conduct of the petitioner’s case would not be hampered withoutit and the probative value is low.  It was further submitted although there is no absolute bar to adducing evidence on an ultimate issue which the court would have to adjudicate, namely, whether EDOS remitted all the profits back to the Company, the court does not need the assistance of the review report to resolve this issue. The 2^nd respondent can be cross-examined by the petitioner’s counsel on those parts of his affirmation which have been criticised in the review report.

33.  In my review, the review report made a number of points, the validity of which has yet to be tested, which are better addressed and presented to the court by a witness with expertise in accounting.  Some of these examples are in paragraphs 5(c), 10(d) and 11(b) of the review report.

34.  I will give leave to adduce expert evidence in the review report which has been exhibited withoutleave to the petitioner’s 3^rd affirmation and leave to supplement the review report by a further report to be produced after inspection of the documents disclosed on specific discovery.  The expert report must be verified by a statement of truth with a declaration that the expert has read the code of conduct in Appendix D to the Rules of the High Court and agrees to be bound by it, in compliance with the new provisions in Order 38 rules 37A and 37C.

35.  I will also give leave to the respondents to adduce expert evidence from an accountant in the form of a report in answer to the review report and the supplemental report of the petitioner’s expert.

36.  I will hear counsel on the time required for the petitioner’s expert to adduce his supplemental report and the respondents to adduce their report in answer.