HUI (ANNIE) GUO v. YUEDONG XU AND OTHERS

HCCL 3/2019

[2022] HKCFI 1629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMMERCIAL ACTION NO 3 OF 2019

(Transferred from HCA No 2404 of 2018)

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DECISION

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1.  This is the application of the 4^th and 5^th Defendants for specific discovery against the Plaintiff in respect of documents relating to alleged secret profits made by the Plaintiff in breach of the Strategic Cooperation Agreement pleaded in the Amended Statement of Claim.

2.  Mr Ng, who appears today for the 4^th and 5^th Defendants, rightly accepted that the court had previously expressed concern about the progress of this case.  I should add that there had been a number of interlocutory applications made before this court, but very little real progress has been made about bringing the case to trial.  I understand from Mr Ng that this application was filed on the last day when interlocutory application must be filed pursuant to the order of this court dated 12 November 2020 (with subsequent extensions). 

3.  There are two fundamental issues concerning this application.  Firstly, the Summons was not supported by any affirmation.  I understand that after receiving the Plaintiff’s skeleton arguments for this hearing yesterday, the 4^th affirmation of Mr Li Jiankun was filed to make good that deficiency.  That affirmation was only served on the Plaintiff yesterday afternoon.  By reason of the fact that the hearing bundles were only lodged with the court early yesterday evening, the affirmation has not been read by the court.  Hence, I do not regard the deficiency as having been remedied.  I think it must be accepted that the requirement under Order 24 rule 7(3) is a mandatory one such that an application of the present type must be supported by an affidavit.  This I regard as a serious deficiency in respect of the application before the court.

4.  Secondly, despite having made lengthy submissions, Mr Ng has not managed to demonstrate to the court why the issue of secret profits is a live one by virtue of the pleadings in this case.  It is not pleaded in the Amended Statement of Claim.  Nor is it pleaded in the Defence of the 4^th and 5^th Defendants.  Even if there is ground for the 4^th and 5^th Defendants to complain that the Plaintiff had, in breach of the Strategic Cooperation Agreement, made secret profits, the point has to be made an issue in the case.  There is simply no answer to the fundamental problem that the matter has not been made an issue in this case, and hence it is not relevant.  Even if there is ground for the 4^th and 5^th Defendants to amend their case to make it an issue, this application is premature.  As it is, the 4^th and 5^th Defendants are putting the cart before the horse. 

5.  For these reasons, this application must be dismissed and I do so.