FUYU PACIFIC MACHINERY LTD v. EDU-SCIENCE (HK) LTD

HCA2689/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2689 OF 2003

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REASONS  FOR  DECISION

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1. The dispute between the parties arose out of the sale of certain second-hand Sumitomo injection moulding machines by the plaintiff to the defendant.  It is the defendant’s case that the machines supplied by the plaintiff were manufactured earlier than as they were represented by the plaintiff to the defendant. 

2. The plaintiff’s principal case is that the defendant was aware of the true years of manufacture, indeed, according to the plaintiff, the false years of manufacture were put on the machines on the direction of the defendant.

3. By a summons dated 14 May 2004 and amended on 14 September 2004, the plaintiff applied for specific discovery of the following :

“	1.	The sale and purchase agreements and/or invoices relating to the Defendant’s purchase of (a) brand new and (b) used or second-hand ‘Sumitomo’ Injection Machines from its Japanese manufacturers and from other suppliers of those machines including but not limited to Kanai Automatic Machines Co. Ltd and ChuKo City Machines Limited (中古城機械有限公司) for the period between December 1987 to July 2003; and
	2.	The Defendant’s 協議(合同)號(95) 226號including 進口設備登記表補充協議，設備清單and合同基本情況therein.”

4. The application was dismissed by Master K.H. Hui on 1 September 2004.  The appeal from the learned master was heard by me on 9 December 2004.  At the conclusion of the hearing, I dismissed the appeal and said that I would provide reasons later.  These are my reasons.

5. Mr Johnny T.K. Cheng who appeared on behalf of the plaintiff told me that the documents sought to be discovered are relevant to the issues pleaded in para. 16 of the Re-Amended Reply at (ii) :

“… (ii) The Defendant would not have been misled or deceived as alleged or at all.  Choy of the Defendant is familiar with the sale and purchase of the Plastic Injection Machines and is himself a sophisticated and/or savvy consumer and buyer in that the Defendant has other source of supply of such kind of machines than the Plaintiff.  The Defendant sometimes bought new machines directly from its manufacturer without the assistance of the Plaintiff (iii) the Defendant factory had about 35 sets of such kind of machines amongst which 20 sets were of Sumitomo Make before Choy of the Defendant instructed Yu of the Plaintiff to provide maintenance services for his machines.”

He also said that the documents are relevant to the state of mind or knowledge of the defendant. 

6. Miss Eling Lee, who appeared for the defendant, has referred me to para. 5(iii) in the 2^nd affirmation of the plaintiff’s director Yu Kwok Yuen where he said :

“(iii) The Defendant had to give particulars of sales contract in the 合同基本情況.  It is therefore highly probable that the Defendant also asked other suppliers of Second hand Sumitomo Injection Machines to put in the sales contract a year of manufacture to match the 80% new (八成新) requirement of China Custom and that a ‘Replaced Plate’ was affixed onto the second hand Sumitomo Injection Machine by other suppliers with the year of manufacture inscribed thereon according to the Defendant’s instruction.”

7. She submitted that this was a fishing expedition.  Moreover, the plaintiff was seeking to have discovery either as to credit or in order to obtain similar fact evidence. 

8. Mr Cheng recognized that he was asking for more than standard disclosure.  And he justified his application by reference to Civil Litigation by O’Hare & Browne, 11^th Edition, para. 30.11 :

“When is it appropriate for the court to order more than standard disclosure?  The following categories of cases are given in the Commercial Court Guide by way of example: where fraud, dishonesty or misrepresentation is alleged; or where knowledge or the lack of it, or disclosure or non-disclosure, is in issue.  In such instances a party may be able persuade the judge that a fuller understanding of the history of events in the case, or of the states of mind of those concerned, is vital to enable the court to dispose of the case justly.”

9. The case is ready for trial but for the application.  If discovery is ordered, it is likely to delay and prolong the trial.  Moreover, it is not clear whether discovery would lead anywhere.  As Miss Lee has submitted the fact that the defendant had purchased other Sumitomo injection moulding machines cannot directly show whether in the case of the defendant’s purchases from the plaintiff, it had been deceived by the wrong year of manufacture.  I am not convinced that the discovery is needed to enable the court to dispose of the case justly. 

10. I should mention that the documents sought in para. 2 of the summons have not been shown by Mr Cheng to be relevant to any of the issues.  It seems that the plaintiff has some of the documents comprised in a so-called booklet and he wants the rest of the booklet.  But he has not persuaded me that this booklet, or the missing pages, have anything to do with any of the issues in the proceedings. 

11. For the above reasons, this summons was dismissed with costs.