XCHRX SHIH MEI CHIN v. YAU TAI NIN AND OTHERS

HCMP6699/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.6699 OF 1998

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J U D G M E N T

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The three proceedings

1. The Plaintiff, Miss Shih Mei Chin, commenced three separate proceedings against different parties.

2. In HCMP 6699/98, she sued Johnson Stokes & Master, solicitors and Mr Yau Tai Nin seeking the production of an agreement relating to allotment of shares and shareholders agreement of a company called "Great Light Ltd.".

3. In HCMP 7006/98, she sued Mr Yau Tai Nin, Mr Yau Tai Leung, Rocky Shek & Co. Accountant and Rocky Shek Secretarial Limited seeking the production of auditors' reports of a company called "Yen Hing Factory Ltd." ("Yen Hing") and its related companies.

4. In HCA 20691/98, she is seeking remuneration as a director and employee from Yen Hing.

5. Very briefly, the Plaintiff and the two Mr Yau are the shareholders and directors of Yen Hing, the Plaintiff being a minority shareholder. There are disputes in relation to the operation of Yen Hing.

The Orders

6. In HCMP 6699/98, Mr Yau Tai Nin succeeded before Master Jones in striking out the Plaintiff's claim against him. The Plaintiff now appeals against that order.

7. In HCMP 7006/98, Rocky Shek & Co. and Rocky Shek Secretarial Limited succeeded before Master Kwan in striking out the Plaintiff's claim against them. The Plaintiff also appeals.

8. The Plaintiff also appeals against interlocutory orders made by Master Poon on 1st April 1999 and Master Lok on 4th May 1999 respectively.

Striking out

9. As the substance of the appeals is on the orders for striking out, I will deal with them first.

10. In HCMP 6699/98, Mr Yau Tai Nin said that the document that the Plaintiff asked for had already been provided to her after the commencement of the case. It was an agreement in English, drafted by Johnson Stokes & Master, but it was not signed by the parties to the agreement and was not acted upon.

11. A senior partner of Johnson Stokes & Master also confirmed the drafting of the agreement and his instruction that the matter was not to be proceeded further. The Plaintiff, however, said that the document she asked for was in Chinese and the content was different. The Master found that the Plaintiff was bound to fail in her claim and the claim was struck out.

12. In HCMP 7006/98, the accountant and the secretarial company argued that the duty to disclose company documents was owed to Yen Hing and not to its shareholders. Besides, the Plaintiff is also asking them to give an explanation on these accounts, a task that is impossible for them to perform.

Action for discovery

13. It is not necessary for me to express a view on these arguments because there is a fundamental issue regarding these two proceedings. These are proceedings for discovery of documents only. As a general rule, a plaintiff cannot have an action solely for discovery. A cause of action, for example, breach of contract, negligence etc., is required.

14. Subject to specific provisions, the Plaintiff cannot commence an action solely for the purpose of discovery. Discovery of documents is a procedural step that the parties to the proceedings have to perform after the commencement of the action. As against non-parties, subpoena may be issued requiring them to produce documents at the trial and to testify in the trial.

15. However, there are exceptions to the general rule :

(1) In personal injury cases, even before commencement of proceedings, a litigant can ask for discovery against a likely party to the proceedings. Also in personal injury cases, after the action had commenced, an order for discovery can be made against a non-party.

(2) There are situations when a plaintiff can require a party to disclose the true identity of a wrongdoer.

(3) Further exceptions are discovery of assets in aid of execution of judgment and the exceptional circumstances of discovery of documents by way of Anton Piller order.

See paragraphs 24/0/4 - 24/0/11 of the Supreme Court Practice 1999.

16. In these two cases, the proceedings clearly do not come within the exceptions. The only purpose is to seek production of documents when there is no other underlying cause of action against the Defendants. In the circumstances, the two proceedings are bound to fail because they have no cause of action. The two proceedings are properly struck out by the Masters.

Leave to appeal out of time

17. As to the appeal against the orders of Master Poon and Master Lok, they are out of time. They were not appealed within the five days of the order. This is in essence an application for leave to appeal out of time.

18. The position relating to these orders are as follows. In HCMP 6699/98 and HCMP 7006/98, Master Ho on 5th February 1999, gave directions for filing of affidavit evidence. The Plaintiff complied with the order but she said that Rocky Shek did not. She issued a summons in each of these two proceedings before Master Poon who, however, dismissed the summons. She then issued another summons before Master Lok who likewise dismissed it.

19. In HCA 20691/98, the Plaintiff had been absent in the hearing of an O.14A summons issued by the Defendant. The Master adjourned the summons. She then issued a summons before Master Lok which was dismissed by the Master.

20. It is not too clear what the Plaintiff was seeking in these summonses. It is more likely that the Plaintiff, as a lay person, had misunderstood the procedure and issued the summonses thinking that they were for the determination of her own claim. However, at that stage as the hearing for the striking out application and the O.14A application were adjourned for argument, there was no substantial applications before Master Poon and Master Lok, hence the various summonses were properly dismissed . This being the case, I would not grant leave to appeal against those decisions out of time.

Plaintiff to seek legal advice

21. If there is a dispute between the shareholders and directors of the company, then the Plaintiff may wish to commence proceedings relating to the company itself, for example, winding-up of the company. This is a matter that the Plaintiff has to seek independent legal advice.

Applications dismissed

22. As the matter now stands before me, the two appeals are dismissed and the application for leave to appeal out of time is also dismissed.

[Submissions on costs]

23. The Plaintiff is to pay the Defendants the costs of the application before me on a party and party basis.