ZHAO ZHI QIANG v. ZHAO ZHIGUANG AND ANOTHER

HCA 1614/2019

[2026] HKCFI 4593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1614 OF 2019

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D E C I S I O N

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1.  The main agreement before me is really one of case management as to whether three expunge summonses should be heard before trial or should be left to the trial judge. This is a dispute between the plaintiff and D1 regarding beneficial ownership in D2, ATL. It is the plaintiff’s case that he is and was at all material times the beneficial owner of ATL, a company which formed part of the plaintiff’s garment business and which indirectly held through Kunshan Hoza, a plot of land in Kunshan on which a factory was constructed.

2.  I do not need for the purpose of this ruling today to go into the details of this case.  Suffice to say that the subject matter of the expunge summonses concern two meetings indisputably held:

(1)  in or about April 2019 between the plaintiff, D1, and the elder brother (“First Meeting”), and

(2)  in or about 3 July 2019 between the plaintiff, D1, and their common friend Jiang Han (“Second Meeting”).  These will be collectively referred to as “the Meetings” below.

3.  Allegedly, D1 made various admissions or representations and there are transcripts of those Meetings produced at this hearing.  D1 suggests that the three expunge summonses are to be argued substantively before trial, whereas the plaintiff suggests that the matter be dealt with by the trial judge.  Specifically, there was a reference by the plaintiff to a decision of Deputy High Court Judge M K Liu handed down on 27 November 2020 wherein he stood over the then first expunge summons and directed that it be heard by the trial judge at the trial.

4.  I have considered the submissions on both sides.  I will not go into the detail of the arguments. The concern really is whether if it is the trial judge who will consider whether or not certain materials and pleadings should be expunged, there is a need for the trial judge to be recused and then it will disturb the way the trial will be handled.

5.  The matter has progressed for about six years since Deputy High Court Judge M K Liu made his remark in his decision.  I do not think any of the expunge summonses have actually been disposed of one way or another by any judge.  Deputy Judge Liu in fact gave directions for the filing of evidence in relation to the first and second expunge summonses filed on 7 July 2020 and 7 July 2025 respectively.

6.  Matters have now progressed to a stage where I am told, at least for the plaintiff’s side, that the matter is near set down for trial, although today, Mr Anson Wong, SC, for the D1, claims that there are still other matters to be dealt with, like discovery.  And from the court’s record, it appears that this court has already directed on 11 March 2026 that a trial judge be assigned for this case.  As of today, no trial dates have been fixed.

7.  I have considered the risk of recusal in the present case.  This is going to be a long case of which the trial may last 14 days.  If the trial judge were to deal with the expunge summonses and at the end of the day considers it appropriate to expunge certain materials and have himself recused from the trial, the trial dates will be wasted.

8.  Mr Dawes, SC, for the plaintiff estimated that the expunge summons if heard together with oral evidence relating to that summons will take three days in itself.  This means that if the trial judge were to recuse himself after disposal of the expunge summonses, 11 days of trial will be wasted.  The Court of First Instance cannot afford wastage of this kind.  In my view, it is best to have the expunge summonses heard, whether it is a preliminary issue or not, before the substantive trial is to commence.

9.  The next issue is whether or not oral evidence should be allowed for the expunge summonses. There was some mention of the need of the trial judge hearing oral evidence in relation to the expunge summonses (see paragraph 37 of Deputy Judge M K Liu’s decision in 2020).  I have questions as to whether or not it is appropriate for the expunge summonses to involve oral evidence at all.

10.  The picture is now clearer.  The subject matter of the expunge summonses can clearly be defined, i.e., the transcript of the two Meetings, together with the draft settlement agreement, and, of course, that would include whatever materials that may be spoken about or created during those Meetings.  The two Meeting dates are clear.  The class of documents involved that may be expunged is also clear.  I do not see the need for a judge dealing with the expunge summons to hear oral evidence.  The tone of the utterances and the manner of the speaker when uttering those words to convey the message of the speaker is simply not relevant, in my view, to deciding whether or not certain matters fall within the ambit of without prejudice privilege.

11.  Further, in terms of interlocutory applications, they are usually dealt with by way of affirmation evidence.  Any application to adduce oral evidence or to cross-examine deponents need to be supported by a proper application.  Looking at the substance of the expunge summonses, I do not see why oral evidence or cross-examination is necessary at all.  In any case, there has been no application before today for cross-examination of deponents.

12.  In the premises, I am of the view that it is appropriate for the three expunge summonses to be disposed of before the trial proper on affidavit evidence alone without oral evidence.

(Discussion re case management and costs)

13.  Costs in the cause of the expunge summonses.