XCHRX TSOI CHAN KWAI KIU AND OTHERS v. LEE HA YU VENUS AND ANOTHER

HCA 5651/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 5651 OF 1997

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REASONS FOR DECISION

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1. This is an application by the plaintiffs against the defendants for specific discovery of certain documents, namely the transcript of the proceedings in criminal case FLCC2521 of 1998, in which the 1st defendant Lee Ha Yu, Venus was charged with and convicted of an offence of using a copy of a false instrument. The 1st defendant is now appealing against the conviction.

2. One of the subject-matters of the present proceedings relates to an allegation of fraud and/or misrepresentation in connection with a sum of about $150,000.00, the alleged receipt of which was the subject-matter of the aforesaid criminal proceedings.

3. Whether the defendants do have possession and/or custody of the documents in question would not be too important an issue at this stage. If the defendants' position is that they do not have the requested documents, they only need to file an affirmation to that effect.

4. The defendants, however, suggest that the application is pre-mature because of the pending appeal by the 1st defendant against her conviction.

5. It is also suggested that there are alternative sources of information and/or documents in question. And lastly, the defendants further contend that the documents in question are not relevant.

6. In my view, irrespective of the outcome of the appeal, the documents in action are clearly relevant in that the subject-matters of the criminal proceedings are in fact identical to one of the causes of action in the present proceedings. Particularly, the evidence given by the witnesses in the criminal proceedings would properly become witnesses in the civil proceedings as well. There seems to be no dispute that there are in fact common witnesses in both sets of proceedings.

7. There may well be alternative sources of the requested documents. Indeed, in the course of counsel's submissions, I have observed that the plaintiffs could probably be able to obtain the record themselves from the relevant authority subject to the fulfilment of certain requisite procedural requirements. But such approach would no doubt cause unnecessary time and expenses and would be contrary to the notion of case management, not just from the point of view of the court but also from the point of view of the parties to the proceedings.

8. In my view, the record of proceedings would no doubt be useful, helpful and relevant in that not only were the issues involved in the criminal proceedings and civil proceedings identical, it may also assist the plaintiffs in any further enquiry that the plaintiffs may wish to make.

9. On the evidence before me and having considered counsel's helpful submissions, I am persuaded that the documents in question are indeed necessary for fairly disposal of the issues involved in this dispute and that the provision of such documents from the defendants, should the defendants be in possession of the same, would no doubt save cost and time.

10. I am satisfied that an order for discovery ought to be made I, therefore, make an order in terms of prayer 1 of the summons with a slight amendment.