WONG YEE CHUK AND ANOTHER v. LO PO WAI, HARRY AND OTHERS

HCMP 3363/2016, HCMP 3365/2016 and HCMP 3366/2016

[2021] HKCFI 3084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANOUS PROCEEDINGS NO 3363, 3365 & 3366 OF 2016

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BETWEEN

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(Consolidated pursuant to the Order of the Honourable Mr Justice Harris made on 2 July 2020)

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D E C I S I O N

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1.  I have before me a summons for discovery of documents dated 26 April 2021 issued by the 2^nd Respondent pursuant to Order 24 rules 10 & 11A of the Rules of High Court (“RHC”). It seeks discovery of seven classes of documents said to be referred to in various paragraphs of the Consolidated Reply to the Points of Defence. The Summons was issued because the Petitioners did not reply to the notice that was served pursuant to O10 r10 of the RHC seeking the documents, as required by r10(2). After the summons was served the Petitioners finally responded asserting that classes (a), (c)–(f) were not referred to in the Reply. This the 2^nd Respondent was prepared to accept.

2.  So far as the two remaining classes (b) and (g) are concerned they concern essentially the same documents, namely, applications for transfer documents relating to trademarks in the Mainland. The Petitioners’ position is that the documents have already been disclosed by the 2^nd Respondent himself in related proceedings (HCMP 1917/2017). The 2^nd Respondent was prepared to withdraw the summons if the Petitioners confirmed that they had no documents other than those which had been disclosed by the 2^nd Respondent in the related proceedings. No response was received to this proposal.

3.  It seems to me clear that the documents relating to the trademark application transfers are discoverable. The summons, and certainly this hearing, it would appear could have been avoided if the Petitioners had replied either to the original notice or to the subsequent proposal that the summons be withdrawn if the necessary confirmation was provided.

4.  In the Petitioner’s skeleton argument it seemed to be conceded that the documents the 2^nd Respondent had himself disclosed in HCMP 1917/2017 was all the Petitioners have, but it was argued that in the circumstances an order was not necessary and, therefore, consistent with O24 r13 of the RHC should not be ordered. For all practical purposes the only issue is costs.

5.  It is unfortunate that the Petitioners did not respond to the requests in respect of classes (b) and (g) in a clear and definitive manner. In the affirmation in opposition to the summons there is a long-winded obscure response to the application in respect of these two categories from which it is very difficult to identify what precisely is being said by the Petitioners.

6.  The present positon would seem to be that the Petitioners say that although they may have had documents falling within (b) and (g) they know longer do. I have had some difficulties trying to get a precise statement from the Petitioners which avoids a formal order. In the circumstances it seems to me that the most straight forward way to deal with this matter is to order that the 1^st and 2^nd Petitioners do within seven days either provide to the 2^nd Respondent copies of the following documents and then the order will refer to (b) and (g) of the summons; or confirm to the 2^nd Respondent’s solicitors that they do not have any of the documents and explaining whether or not they remain within the control of the Petitioners.

7.  So far as costs are concerned, as I have already indicated it seems to me that it should have been possible certainly to avoid this hearing and probably issue of the summons. In the circumstances I take the view that the appropriate costs order is that the Petitioners pay the 2^nd Respondent’s costs of and occasioned by the summons dated 26 April 2021 summarily assessed at HK$100,000.