XCHRX TANG MAN KIT AND ANOTHER v. HIP HING TIMBER CO. LTD.

HCA 8000/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8000 OF 1990

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R U L I N G

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1. This is an application by the Defendant for specific discovery of certain documents. After the summons was issued, the Plaintiff filed a 4th Supplemental List of Documents and has filed yesterday the 3rd affirmation of Tang Man Kit and the 2nd affirmation of Wong Chor Wan.

2. The 4th Supplemental List of Documents includes certain documents referred to as (i) copy Originating Summons under MP No.956/1993 and copy Consent Order under those proceedings (which I will refer to as "the 1st set of proceedings"); (ii) copy Originating Summons under MP No.1173/1994, Consent Summons under that M.P. and copy Order under that M.P. (which I refer to as "the 2nd set of proceedings") and (iii) copy Writ of Summons under HCA No. 4482/1989, copy Consent Summons and copy Order under these proceedings (which I will refer to as "the 3rd set of proceedings").

3. Having seen those documents, the Defendant has focused on the 2nd and 3rd set of proceedings.

4. The 2nd set of proceedings are miscellaneous proceedings issued by Tonkit Development Limited and two individuals, Mr Wong Kam Tong and Mr Wong Kwan Wing against Mr Tang Man Kit and Mr Chan Kam Cheung, and these are proceedings pursuant to Order 85 r.2 and under sections 56, 57, 58 and 59 of the Trustee Ordinance, Cap.29.

5. These proceedings were apparently compromised by a Consent Summons which gave rise to a Consent Order dated 16 January 1998 in which it was ordered amongst other things, that Mr Tang and Mr Chan convene a general meeting of all the shareholders and/or beneficiaries of the Wah Yan Mo Fan Heung to discuss, amongst other things, the following matters:

(1) to inform the shareholders and/or beneficiaries of the up-to-date position of the Heung;

(2) to inform them about the advice of leading counsel;

(3) to invite them to consider the feasibility and desirability of converting the Heung into a company limited by shares or guarantee to be incorporated under the Companies Ordinance, Cap.32, and

(4) to deal with any other business which any shareholder or beneficiary of the Heung may bring up.

6. In relation to this 2nd set of proceedings, the Defendant has asked for specific discovery of any affirmations filed in those proceedings, the minutes or records of the meeting referred to in the Order and correspondence between the parties setting out their respective cases.

7. Mr Lee, for the Plaintiff, has objected to discovery. First of all, in relation to the record of the meeting, he says that it would be irrelevant because the status of the Heung, whether it is a 'Tong' under section 15 of the New Territories Ordinance, or is an 'unincorporated association', or is a 'trust', is a question of law to be decided by this Court.

8. However, I would note that the Court would not be able to determine that status in a vacuum. What the Court has to see are the features of factual matters, in the context of which the Court would have to decide what is the true status of the Heung. Therefore, I would disagree with Mr Lee's submission that since the status of the Heung is purely a question of law, that it is not relevant to the exercise that this record of the meeting should be disclosed. One is particularly interested in the features which prompted the parties to agree to an order that a meeting be held to invite members and/or shareholders to consider the feasibility and desirability of converting the Heung into a company limited by shares or guarantee. Insofar as any parts of that record may include references to the advice of legal advisers, no doubt those parts could be blanked out or covered in the photocopying process so as to protect any legal professional privilege.

9. As for the affirmations and the correspondence, I do not understand Mr Lee's submission that legal professional privilege would be attracted because they had been written on legal advice.

10. However, I am concerned with the implied undertaking given by the parties to each other not to use documents disclosed on discovery for purposes other than that particular piece of litigation itself. In an action, that implied undertaking would be given in respect of documents disclosed on discovery; in miscellaneous proceedings started by originating summons, of course there is no such process as discovery but documents are disclosed by way of exhibits to affidavits, and it may be that those exhibits may be subject to the same implied undertaking. I say 'may be' because there has not really been any full study of this aspect of the law at this hearing.

11. Mr Mok for the Defendant here is happy to confine his application for discovery only to the body of the affirmations and on that basis, I would order discovery of the affirmations but only to the body of the affirmations and not to any documents exhibited. Similarly, in relation to correspondence, I would order discovery of the body of the letters but not any documents exhibited or annexed to such correspondence.

12. In relation to the 3rd set of proceedings, this is of even greater relevance to the present case because in the present case, as I understand it, the Plaintiff's case now is that there has been no registration by the Land Officer under section 15 of the New Territories Ordinance even though the Plaintiff says that they ought to have been registered under section 15 of the New Territories Ordinance because the Heung is a Tong.

13. However, in para.13(ii) of this Statement of Claim filed on behalf of Mr Tang Man Kit and Mr Chan Kam Cheung, it has been pleaded that "the remaining land lots have never been distributed to the Heung's members and beneficiaries which remained registered:

(1) in the names of the said managers as trustee, and

(2) erroneously in the name of the Heung, through a manager or managers, purportedly under section 15 of the New Territories Ordinance,

full particulars whereof exceeding 3 folios are set out in the 2nd Schedule hereto". That appears on the face of it to be contrary to the case now being put forward by the Plaintiff in the present case.

14. Therefore, I am in no doubt that further court documents going to the parties' case and correspondence setting out the respective of cases of the parties would be relevant to the present proceedings, subject also to the same caveat as set out above, that in relation to any correspondence and certainly in relation to documents disclosed on discovery, there should be no discovery of those documents which would attract the implied undertaking.