XCHRX CHI WING AND ANOTHER v. BENSUNVILLE LTD.

HCMP 2026/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2026 OF 1998

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R U L I N G

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1. This is an application by the Respondent to proceedings under Section 48 of the Trade Marks Ordinance, the main proceedings being an application by Mr Chi Wing and Madam Law Oi Ying trading as Singapore Headway Medicine Company to expunge a registration from the Register of Trade Marks. Bensunville Ltd, the Respondent, is the owner of the registered trade mark at this point of time.

2. There have been five rounds of evidence filed in this matter which began in 1998. The Applicants filed the first round of evidence, being an affirmation from Madam Law Oi Ying herself together with a supporting affirmation by Mr Law Shing Wei. In June to July 1999, the Respondent filed the 2nd round of evidence and in October 1999 the Applicant filed a 3rd round of evidence being an affirmation of Madam Law Oi Ying and an affirmation from her solicitor Mr Billy Tun.

3. On 24 November 1999, I gave leave to the Respondent to file a 4th round of affirmations being two affirmations from two former employees of Nanyang and Headway and the 2nd affirmation of Mr Law Yan Wai. I have read the second affirmation of Mr Law Yan Wai very carefully and it would appear to me that although he says quite categorically that what was seized by Customs and Excise could not have been stock in trade sold and delivered by Nanyang to Law Oi Ying in 1995, that was due to a visual comparison of the designs.

4. On 24 November 1999, I gave leave to the Applicants to file and serve evidence by way of affidavit, but only in reply to the factual matters raised in the Respondent's 4th round of evidence.

5. On 14 December 1999, there was filed an affirmation of Law Chun Hing and the present application before me is for an order that the affirmation of Law Chun Hing be ruled inadmissible on the ground that the contents thereof are not in compliance with my order that whatever affidavits are to be filed by the Applicants should only be in reply to the factual matters raised in the Respondent's 4th round of evidence.

6. I have read the affirmation of Law Chun Hing carefully and it appears to me clear that nothing in this affirmation can be said to be in reply to the factual matters raised in the Respondent's 4th round of evidence. Mr Hui who appears today for the Applicants has preferred to proceed on the basis that this court should give leave to file this affirmation of Law Chun Hing as a matter of discretion because he says this lady is elderly and not in good health and previously the Applicants had not wished to have to trouble her for her evidence. In my view, clearly, this affirmation is not in compliance with the order, and more importantly, the evidence itself could have been filed, if not at the time of the 1st round of evidence in February 1999, then clearly when the Applicants were filing their 3rd round of evidence in October 1999.

7. In any event, I would observe that as far as the affirmation of Law Chun Hing is concerned, she sets out at paragraphs 1 to 5 the history of this family which is not really the subject matter of any real issue in the proceedings, and in paragraph 6 only, she asserts that Lou Fu Mountain Hundred Grass Oil was part of the stock in trade of Nanyang sold and delivered to the Applicants in 1995. It is not clear from the affirmation whether this was said as a matter of personal knowledge and if so how she acquired this personal knowledge. But in any event, even if there had been any personal knowledge of this matter, this should have been affirmed to, if not in the 1st round, then certainly in the 3rd round of evidence.

8. In all the circumstances, in the exercise of my discretion, particularly bearing in mind the fact that these proceedings had been started in 1998 and there had been substantial material put before the court previously, I would decline to give leave for the filing of this evidence.