CHAN YUEN WAH DORA v. CHAN KWONG SUN

HCA 6283/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6283 OF 1997

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J U D G M E N T

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1. This is an application for discovery of documents in compliance with an undertaking given by the Plaintiff in another High Court Action namely, HCMP 3955/1995 between the same parties, which undertaking was embodied in an order made by the court in those proceedings on 4 September 1996.

2. This is not the first time the Defendant applies for discovery of documents pursuant to that undertaking. Indeed, on 12 April 2002, the Defendant made a similar application for discovery of documents in the present action, which application was heard and dismissed by Master Rimsky Yuen on 17 April 2002. Against the learned Master's order, there was no appeal.

3. After the dismissal of the Defendant's application, the Defendant took out two unsuccessful applications, which were in substance the same as the April application under the present action as well as the present application that is before me today, under HCMP 3955/1995. Again there was no appeal against the dismissal of his two applications in the other action.

4. In my judgment, for this reason alone, the Defendant is not entitled to make the same application before me today in the present action. The same or substantively the same application has been made three times before. They have all been unsuccessful and there has not been any appeal. The matter has been decided and the decision is binding as between the parties in question. It is therefore an abuse of the process of the court for the Defendant to make the same or substantively the same application in the present action before the court today.

5. As I said, for this reason, the application must fail. In any event, turning to the substance of the application, insofar as this application may be regarded as an application for specific discovery under Order 24 of the Rules of the High Court, Cap. 4, which is an alternative basis for the present application relied on by the Defendant at today's hearing, who I must bear in mind is unrepresented, there is no or insufficient material to persuade me on firstly, the relevance of the documents sought to be disclosed to the issues between the parties in the present action, and secondly, the necessity for the discovery of the documents at this stage as is required under Order 24, rule 8 for specific discovery regardless of how one puts the burden of proof.

6. This action involves the Plaintiff seeking a declaration from the court that the Defendant has been holding certain shares in trust for the Plaintiff. The documents sought to be disclosed are internal company documents and financial documents. The burden is really on the Defendant to persuade the court that the documents sought are relevant to the issues between the parties.

7. Having listened carefully to the submission of the Defendant as well as having read his affirmation filed in support of his application, I cannot see any real relevance between the documents sought and the issues involved in the present action. Many matters and disputes are raised by the Defendant at today's hearing. In my judgment, whilst they may be relevant as issues or subsidiary issues at trial, they are certainly not relevant to his present application today.

8. In any event, even if the documents could somehow be regarded as relevant to the issues in question, I certainly fail to see how their discovery at this stage would be necessary either for disposing fairly of the cause or matter between the parties or for saving costs as is required, as I said, by Order 24, rule 8 as a pre-requisite for ordering specific discovery.

9. So for all these reasons, the application of the Defendant is dismissed. I see no reason why costs should not follow the event. I order that the costs of and occasioned by this application be paid by the Defendant to the Plaintiff forthwith in the gross sum of HK$18,000.00.