CHOW KAM HUNG v. HOI KONG IRONWARES GODOWN CO LTD

HCA 621/2012 and
HCA 2294/2013
(Heard Together)
[2018] HKCFI 2671

HCA 621/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 621 OF 2012

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AND

HCA 2294/2013

ACTION NO 2294 OF 2013

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(Heard Together)

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DECISION

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THE APPEALS

1.  HCA 621/2012 (“HCA 621”) and HCA 2294/2013 (“HCA 2294”) were started in parallel by the same plaintiff (“Chow”) in 2012.  HCA 621 was started in the High Court by Writ issued on 17 April 2012, whereas HCA 2294 was originally started before the District Court by Writ issued on the same date but subsequently transferred to the High Court in 2013.  Common issues are involved.  They have been ordered to be tried before the same judge. 

2.  There are two appeals before me:

(a)   In HCA 621, the defendant (“Hoi Kong”) by summons dated 9 August 2017 (the “621 Summons”) sought leave to amend its Amended Defence and Counterclaim (“621 AD&C”).

(b)   In HCA 2294, the 1^st and 2^nddefendants (respectively “Ng” and “Shine Wheel”, and together with Hoi Kong collectively “the Defendants”) by another summons also dated 9 August 2017 (the “2294 Summons”) sought leave to amend their:

(i)   Amended Defence (“2294 ADef”); and

(ii)   Amended Answers to the plaintiff’s Request for Further and Better Particulars of the Amended Defence (“2294 AF&B of Def”);

(c)   On 15 December 2017, Registrar Lung allowed both applications (“the Decisions”);

(d)   By these two appeals, Chow seeks an order that the Decisions be set aside, and that certain specific proposed amendments be disallowed on the basis that they, submitted by Mr Chai who appeared for Chow, amount to withdrawal without leave of certain admissions relating to the status of the remaining portion of Lot No 3891 [1] (“the Land” or “the Property”) which the Defendants have previously made on pleadings.

THE BACKGROUND

Under HCA 621

3.  Chow’s original Statement of Claim was dated 16 April 2012.  It was amended once on 3 May 2016.  Chow’s pleaded case is that he and Hoi Kong in about 1985 started to carry on a partnership business in ironmongery and stainless steel.  Hoi Kong was under the control of Ng.  No separate name for this partnership has been pleaded.  His claim against Hoi Kong is for his share of profits in the partnership or alternatively a dissolution of the partnership.  The Land is not mentioned in Chow’s Amended Statement of Claim, and forms no part of his claim. In fact, his position is that the Land is irrelevant to his claim in HCA 621, so much so that he started a separate action (ie HCA 2294) to enforce his alleged interest in the same (as I will explain further).

4.  Hoi Kong filed its original Defence and Counterclaim on 20 June 2012, and its 621 AD&C on 13 June 2016.  Hoi Kong pleaded therein as follows.  Hoi Kong’s main businesses upon its corporation in 1982 was collection of steel scraps for recycling.  In around 1985, it enteredinto a joint venture partnership with Chow to carry on ironmongery business (which in the 621 AD&C was referred to as “the Partnership”).  It was to be operated under the name of Hoi Kong and as its ironmongery department.  In about 2000, Chow and Hoi Kong agreed to expand the business to cover the trading of stainless steel in the Mainland.  In about October 2004, Chow and Hoi Kong agreed that the Partnership should be dissolved.  Following that, they agreed upon certain settlement arrangements (“the Settlement”).  Hoi Kong pleaded that by virtue of the same, Chow’s claim in HCA 621 had been compromised.  Hoi Kong pleaded that in any event, Chow’s claim in HCA 621 had been time-barred.

5.  Relevantly, at paragraphs 13 and 14 of the 621 AD&C, Hoi Kong pleads that:

“ 13. In addition to the ironmongery and stainless steel business, the Partnership was also expanded to acquire a site for the business operation at [the Land] in 1990. The purchase costs therefor at HK$358,241.00 was provided by [Shine Wheel], who was the nominee of [Hoi Kong] to hold the [Land]. The purchase costs was loaned to the Partnership subject to an annual interest rate of 2% over and above the prevailing prime rate announced by HSBC from time to time.

14. The [Land] was used for the Partnership business operation until its resumption by the government in 1998. A compensation sum of HK$1,485,121.50 was received by [Shine Wheel].”

6.  Hoi Kong pleaded further that having taken into account (1) the net profit enjoyed by the Partnership; (2) certain reimbursements and payments which the Chow had to pay back the Partnership; (3) the compensation received from the Government upon resumption of the Land; and (4) the purchase costs of the Land together with the interest paid on the same, Chow in fact owed Hoi Kong the net sum of HK$82,741.00—hence the Counterclaim.

7.  In his Amended Reply and Defence to Counterclaim dated 27 February 2017 (“621 AR&DC”), Chow expressly denied paragraph 13 of the 621 AD&C (§8).  He pleaded that in about 1990, he and Ng started to carry on a partnership business in relation to the Land, which he called the “Partnership on Land” (§8(1)).  He said that it was a business separate and distinct from the other “Partnership in Ironmongery and Stainless Steel Business” (§8(2)).  He pleaded that the idea of acquiring the Land originated from the potential gain to be made upon the increase in value of the Land, and that Ng paid into the Partnership of Land a sum of HK$358,240 as capital of its business (§8(3) and (4)).  It was not a loan (§8(6)).  In about January 1990, the Land was purchased in the name of Shine Wheel (§8(5)).  On the basis that the Partnership on Land was separate and distinct from the other Partnership, Chow further denied that the resumption compensation, the purchase costs of the Land and the interest paid thereon should be taken into account in HCA 621 (§10(1)).  Those were (and still are) the subject-matters in HCA 2294 which Chow had started in parallel (see below).

Under HCA 2294

8.  Chow’s original Statement of Claim was dated 16 April 2012 (the same date as his Statement of Claim in HCA 621). It was amended once on 27 April 2016.  His claim related to the Partnership on Land which he subsequently also pleaded in the 621 AR&DC (summarized above).  He claimed that he and Ng in about 1990 formed the Partnership on Land on the purchase of the Land (§1).  Under the Partnership on Land, Ng contributed HK$358,240 as capital and the parties agreed that all profits were to be sharedby and paid to Chow and Ng equally (§§4 and 5). On 20 January 1990, the Land was acquired in the name of Shine Wheel pursuant to the Partnership on Land (§6).  From 1 May 1990 to 30 April 1998, the Land was leased to Hoi Kong at HK$6,000 per month (§7).  On 1 June 1998, the Land was resumed by the Government and Shine Wheel received compensation in the sum of HK$1,485,121.50 (§8).  Profits (in terms of rental profits and resumption compensation) had been made (§9).  He claimed against Ng and Shine Wheel his share of those profits, or alternatively a dissolution of that partnership.

9.  Ng and Shine Wheel filed their original Defence on 20 June 2012, and their 2294 ADef on 13 June 2016.  They pleaded therein as follows:

(a)   They denied Chow’s pleaded case about the existence of the Partnership on Land (§2).  They pleaded the same Partnership Hoi Kong pleaded in HCA 621 between Chow and Hoi Kong (§3(1)).  They pleaded (at §3(3)) that “there was never a partnership in relation to land between [Chow] and [Ng and Shine Wheel].”  They “aver that there was never a partnership with [Chow] in relation to land at all and repeat paragraph 2 hereinabove” (§6).  Relevantly, they pleaded at paragraphs 7, 8 and 10 of the 2294 ADef that:

“ 7. … [Ng and Shine Wheel] aver that:

(1) on 7^th August 1989, a provisional agreement was entered into by [Shine Wheel] to purchase the Property at a consideration of HK$350,000.00. [Shine Wheel] acted as a nominee for [Ng] to hold the Property for and on his behalf until the same was acquired by the Partnership in May 1990.

(2) the sale and purchase was completed on 20^th January 1990.

(3) in May 1990, the place of business of the Partnership was relocated to the Property which was agreed between [Chow] and Hoi Kong to be treated as the property and asset of the Partnership.

8. … [Ng and Shine Wheel] aver that a sum of HK$6,000.00 was paid by the Partnership to [Shine Wheel] per month as reimbursement to cover any expenses incurred by [Shine Wheel] from May 1990 to 30^th April 1998.

…

10. … [Ng and Shine Wheel] aver that there was never any such partnership as alleged in relation to land ….”

(b)   At paragraph 10A, Ng and Shine Wheel pleaded that Chow’s claim had in any event been time barred.

(c)   At paragraph 11A, having pleaded the same Settlement pleadedand relied upon by Hoi Kong in HCA 621, Ng and Shine Wheel averred for the same reason that:

“ 11B. By reason of the matter aforesaid, [Ng and Shine Wheel] avers [sic] that [Chow’s] cause of action herein has merged with the Settlement and [Chow] is barred from bringing this claim byreason of the parties reaching a compromise in the terms of the Settlement.

11C. … [Ng and Shine Wheel] avers [sic] that [Chow’s] conductshows a clear and unequivocal understanding that a compromise has been reached between [Chow] and [Ng and Shine Wheel].  All disputes relating to the Partnership, including any dispute relating to Land was, therefore, resolved by the Settlement ….”

10.  Chow filed his Amended Reply on 27 February 2017.  Thereby, issues were joined.  In specific reply to paragraph 3 of the 2294 ADef, Chow pleaded that “the Partnership on Land as between [Chow] and [Ng] is a separate and distinct business from any partnership concerning carrying onof ironmongery business involving [Chow]”.  Paragraph 8 of the 2294 ADef was “categorically denied”, and paragraphs 11A to 11C of the 2294 ADef expressly denied.

11.  Subsequently, further and better particulars of the 2294 ADef were sought.  Relevantly, Ng and Shine Wheel provided the following answers in respect of paragraph 11C of the 2294 ADef, that:

“ … [Ng and Shine Wheel] wish to repeat paragraphs 7(1)–(3) and10 of the [2294 ADef] and aver that only a Partnership (StainlessSteel Partnership) existed between [Chow] and Hoi Kong. It isspecifically denied that there was a ‘Land Partnership’ as alleged formed between [Chow] and [Ng and Shine Wheel].

Therefore, by reason of the settlement arrangements reached between [Chow] and Hoi Kong in respect of the Partnership, all disputes arising out of the said Partnership including the Land ie. Property which is an asset of the Partnership have been compromised and any alleged causes of action have been merged with the Settlement.”

The two actions to be heard together

12.  On 25 April 2014, an Order was made by consent that “[HCA 621] and [HCA 2294] be tried at the same time”.  No formal consolidation or consolidated pleadings have been ordered.

13.  On 12 August 2015, Registrar Lung ordered that “The evidence in [HCA 2294] shall be admissible evidence in [HCA 621] and vice versa.”

The proposed amendments which are objected to

14.  By the 621 Summons, Hoi Kong sought leave to amend its 621 AD&C.  The material ones which are objected to are at paragraphs 13 and 14 of the 621 AD&C (the proposed additions are underlined, the proposed deletions are struck-through, and those objected to in bold-print and italicized):

“ 13. In or around late 1989 or early 1990, the Partnership’s place of business operation was relocated from Sun Hing Village to [the Land]. In addition to the ironmongery and stainless steel business,the Partnership was also expanded to acquire a site for the business operation at [the Land] in 1990. The purchase costs of [the Land] therefor at HK$358,240.00 was provided by [Shine Wheel], who was the nominee of Mr. Ng [Hoi Kong] to hold the [Land]. The purchase costs for acquiring the [Land] was secured by Mr. Ng (shareholder of Shine Wheel Limited) through the obtaining of various director’s loan from [Hoi Kong] and bank loans in late 1989 or early 1990s. At all times,it was Mr. Ng who had been paying interest for the aforesaid director’s loan and bank loan since late 1989 until 1998 which wasloaned to the Partnership subject to an annual interest rate of approximately 2% over and above the prevailing prime rate announced by HSBC from time to time.

14. The [Land] was used for and rented bythe Partnership business operation at HK$6,000 per month until the further relocation of the said Partnership business operation in or around March 1998.its resumption by the government in 1998.  A compensation sum of HK$1,485,121.50 was received by Shine Wheel Limited in or around June 1998 as a result of the resumption of the [Land] by the Government.”

15.  By the 2294 Summons, Ng and Shine Wheel sought leave to amend their 2294 ADef and 2294 AF&B of Def.  The effects of the proposed main amendments were summarized by Mr Leung, counsel for the Defendants, as follows:

(a)   The Land was acquired by Shine Wheel in late 1989 or early 1990.  The payment of the purchase costs was secured by Ng (as a shareholder of Shine Wheel) through the obtaining of various director’s loans from Hoi Kong and bank loans in 1889/90.  Ng paid interest for the said director’s loan between 1989 and 1998 (§6(1) proposed to be added);

(b)   In late 1989 or early 1990, the Partnership (of ironmongery) received a lot of complaints from residents near its place of business and thus need to look for an alternative place of business. Ng told Chow that the Partnership could rent the Land from Shine Wheel as the former’s place of business (§6(2) proposed to be added);

(c)   In about May 1990, the Partnership (of ironmongery) relocated its place of business to the Land and had since then been paying rents of HK$6,000 per month to Shine Wheel until March 1998 when the Land was resumed by the Government (§6(3) proposed to be added);

(d)   After the relocation of the place of business to the Land in 1990, Ng orally promise (“Oral Promise”) Chow that if in the future the Land could be sold, Ng would share half of the net profits with Chow.  However, Ng had never agreed to share with Chowany rental income generated by Shine Wheel.  There was never any Partnership of Land between Chow and Ng because Chowwas not required to bear any risk in the purchase of the Land. Nor was Chow liable for any loss resulting from the sale of the Land (§6(4) and (5) proposed to be added);

(e)   It is also averred the Oral Promise is unenforceable in law for want of consideration and for uncertainty of its terms (§6(6)(a) proposed to be added);

(f)   Certain words are proposed to be deleted from §§7(1) and 7(3) of the 2294 ADef so as to clarify that the Land was acquired by ShineWheel in 1990, that the Land was not an asset of the Partnership(of ironmongery) and was not acquired by the latter (§7(1) and (3));

(g)   Consequential amendments to those answers provided in the 2294 AF&B of Def (reproduced in paragraph 11 above).

Ng’s witness statement and Listing Questionnaires

16.  Ng’s witness statement in HCA 621 was dated 27 February 2017.  His evidence was along the line of the amendments which the Defendants are seeking leave to effect.  He expressed therein his intention of seeking leave to amend his pleadings.  He has also set out the scope and general nature of the intended amendments.  What he has indicated therein are consistent with the proposed amendments which the Defendants subsequently sought leave to effect by way of the 621 and 2294 Summonses.

17.  It should also be noted that in the Defendants’ Listing Questionnaires both dated 15 May 2017 filed respectively in HCA 621 and HCA 2294, the Defendants indicated the intention to seek leaves to amend the pleadings.

The hearing before Registrar Lung

18.  The two Summonses came before Registrar Lung on 15 December 2017.  Parties were represented by the same counsel who were before me.  Having heard submissions, Registrar Lung allowed both applications.  In gist, he rejected the submission that the Defendants had made admissions of the nature Mr Chai was contending for, and that the proposed amendments did not amount to any withdrawal of admissions.

THE PARTIES’ SUBMISSIONS

19.  Chow objected to some of the proposed amendments (details of which he has set out in the Notices of Appeal and elaborated upon in a Schedule attached to Mr Chai’s written submissions). His stance was summarized by Mr Chai in his written submissions, that:

“ … the defendants’ pleadings in respect of the status of the Land is the subject matter of P’s objection herein. In a gist, P says that the Land was an asset of a partnership in which he is a partner, such that he should be entitled to the profits arising therefrom. P says that the defendants have admitted on pleadings that the Land was an asset of a partnership to which P was/is a partner. Therefore, subject to the 3 lines of defence raised by the defendants [namely, compromise, time bar, and that P in fact owed Hoi Kong money upon proper account-taking], on the defendants own pleadings, such profits must be paid to P or otherwise taken into account in calculating P’s entitlements arising from the partnership. P submits that, the defendants’ present amendments, which seek to put forward a new case that the Land was not an asset of any partnership but the Land was owned by Shine Wheel, amount to withdrawal of admission without leave.” (§3)

“ The defendants in both actions now seek to withdraw from the position that the Land was an asset of a partnership to which P was a partner and withdraw from the position that Shine Wheel held the Land for the partnership. The new position of the defendants is that the Land was not an asset of any partnership at all. It was an asset of Shine Wheel. They go further to suggest that Shine Wheel as landlord rented it to the partnership”. (§8)

20.  Chow hence objected to leave being granted to effect those amendments which he claimed amounted to objectionable withdrawal of admission.

21.  Mr Leung for the Defendants submitted that the appeals should be dismissed because Chow’s complaint that the Defendants’ proposed amendments amounted to a withdrawal of admission was misconceived and unmeritorious.  The main thrust of his submissions was that the defendants had not made any admission of the nature which Mr Chai was contending for.  He highlighted the points that in the proposed amendments:

(a)   the Defendants’ case on the alleged Partnership on Land remains the same, that there has never been any such partnership; and

(b)   the Defendants have only further particularized the facts and clarified its case in support of their denial of the alleged Partnership on Land.

APPEAL BY WAY OF REHEARING

22.  I remind myself of the following principles, which are trite and not disputed by the parties.  An appeal from the master to the judge in chambers is dealt with by way of an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time.  The judge will give the weight it deserves to the previous decision of the master, but he is in no way bound by it.The judge in chambers is in no way fettered by the previous exercise of the master’s decision, and on appeal from the judge in chambers, the Courtof Appeal will treat the substantial discretion as that of the judge, and not of the master—Hong Kong Civil Procedure 2019, paragraph 58/1/2.

APPLICATION FOR AMENDMENT OF PLEADINGS RESISTED ON THE BASIS THAT THE PROPOSED AMENDMENTS AMOUNT TO WITHDRAWAL OF AN ADMISSION — THE RELEVANT CONSIDERATIONS

23.  Admissions may be express or implied.  They are in most cases made on the face of or by pleadings.  But that does not have to be so. For example, in Lo Li Li Lily v Lui Fung He [2016] 3 HKC 483, the admissions which the plaintiff sought leave from the Court of Appeal to withdraw were made by her in two letters which she wrote to the court.

24.  In cases like Lo Li Li Lily, the applicants by making the applications accept that they have made an admission.  There is no need for the Court to consider whether an admission has in fact been made.

25.  However, when an application for amendment of pleadings is resisted on the basis that the proposed amendments amount to withdrawal ofadmission, the first issue that need to be considered is whether an admission has in fact been made. 

26.  In the course of submissions, Mr Leung referred me to paragraph 27/3/1 of Hong Kong Civil Procedure 2018, that to be admissions, “they must be clear and unambiguous (Re Chung Wong Kit (a bankrupt) [1999] 1 H.K.L.R.D. 410; …).”

27.  Whilst that requirement was stated in the context of Order 27, rule 3 (concerning judgment on admission), I see no reason why the same requirement need not be satisfied in the context of withdrawal.  Once an admission has been proved to have been made, consequences flow. If it covers an element of a claim, that element can be taken to be established without further proof.  If it covers all elements of a claim, judgment on admission may be entered.  There can be no distinction between the two.

28.  Once it has been established that an admission has been made,the next issue is whether leave for its withdrawal should be granted.  Whether to do so is in the discretion of the Court.  In Sowerby v Charlton [2006] 1 WLR 568, Brooke LJ observed at paragraphs 35 and 36 that:

“ 35. … the unreported judgment of Sumner J in Braybrook v Basildon and Thurrock University NHS Trust [2004] EWHC 3436 (QB) at [45] appears to us to offer valuable guidance on the way in which a court should exercise its discretion when determining whether or not to permit the withdrawal of an admission that was made after an action was commenced. After referring to a number of earlier cases he said, at para 45:

‘From these cases and the CPR I draw the following principles. (1) In exercising its discretion the court will consider all the circumstances of the case and seek to give effect to the overriding objective. (2) Amongst the mattersto be considered will be: (a) the reasons and justification for the application which must be made in good faith; (b) the balance of prejudice to the parties; (c) whether any party has been the author of any prejudice they may suffer; (d) theprospects of success of any issue arising from the withdrawal of an admission; (e) the public interest, in avoiding where possible satellite litigation, disproportionate use of court resources and the impact of any strategic manoeuvring. (3) The nearer any application is to a final hearing the less chance of success it will have even if the party making the application can establish clear prejudice. This may be decisive if the application is shortly before the hearing.’

36. Above all, the exercise of any discretion will always depend on the facts of the particular case before the court.  The words ‘will consider all the circumstances of the case’ have particular resonance in this context.”

29.  In Lo Li Li Lily, Kwan JA, having cited the above observations of Brooke LJ in Sowerby v Charlton, observed at paragraph 21 that:

“ We think the above guidance should apply equally to Hong Kongin view of the underlying objectives in O 1A r 1(a) to (d) and (f) of the Rules of the High Court introduced as a result of the Civil Justice Reform.”

30.  When deciding whether leave should granted, the need of the applicant applying to withdraw an admission to put forward a convincing and credible explanation of the circumstances in which the admission was in fact made is, although no conclusive, a power powerful factor.  That also goes to the issue of good faith on the part of the application (Lo Li Li Lily, at §18). 

31.  I will adopt the above approach when considering the present appeals.

WHETHER ADMISSIONS HAVE BEEN MADE AS ALLEGED

32.  Stripped to the essential:

(a) Chow’s overall position is that:

(i) there was a partnership between him and Hoi Kong for which he was entitled to certain unpaid profit;

(ii) the Land, and any profit arising therefrom, had nothing to do with that partnership; and

(iii) there was a distinct and separate Partnership of Land between him and Ng in respect of which he was entitled to certain profits which the Land had given rise to.

(b) The Defendants’ overall position before the proposed amendments is that:

(i) there was a partnership between P and Hoi Kong;

(ii) that partnership was “expanded to acquire [the Land] in 1990” and the purchase costs were “loaned to the Partnership” (§13 of 621 AD&C);

(iii) in May 1990, the Land was “agreed between [Chow] and Hoi Kong to be treated as the property and asset of the Partnership” (§7(3) of 2294 ADef); and

(iv) they denied the existence of any Partnership of Land between Chow and Ng.

33.  There has not been any express admission by the Defendants. Nor was there any implied or deemed admission in the sense of, for example, failure to traverse.

34.  In effect, Chow is saying that there are certain averments of facts made by the Defendants which will assist him in the proof of his case.  In particular, Mr Chai argued (at paragraphs 17 and 18 of his submissions) that the Defendants’ averments that the Land was acquired by or agreed to be treated as the property of the Partnership would assist Chow in the proof of his case, and those averments were admissions.

35.  Mr Chai’s contention in this regard however ignored the fact that the pleaded defences of the Defendants in both of the actions are on factual basis different from those pleaded and relied upon by Chow.  The Defendants’ case is that there was only one partnership between Chow and Hoi Kong.  Chow steadfastly maintained that there were two distinct and separate partnerships between different parties (one between him and Hoi Kong whilst the other one was between him and Ng).  He further specificallydenied the purchase price of the Land was a loan or otherwise interest bearing.

36.  Given the very different factual bases of the parties’ respective pleaded cases, I am not satisfied that the Defendants have made any admissions in respect of the status of the Land.  Whilst the Defendants have made certain factual averments which may be relevant to certain elements of Chow’s claims, I am not satisfied that any clear and unambiguous admissions have been made.

37.  In any event, even if I had considered that the Defendants had made some admissions relating to the status of the Land, I would have granted them leave to effect the proposed amendments.  The reasons are as follows:

(a)   Any admissions that the Defendants may have made were not express.  Nor were they implied by operation of the Rules of High Court.  They were averments of facts made in pleadings.  It is understandable in the circumstances that the applications were made in the form of amendment of pleadings as opposed to withdrawal of admissions.  This is particularly so when the Defendants have previously, both in their Listing Questionnaires and in Ng’s witness statement, indicated their intention to seek amendment.

(b)   In the circumstances, and given the nature of the applications, I do not attach much weight to the failure on the Defendants’part to explain the circumstances in which the so-called admissions were made.

(c)   I have no basis to find that the applications were made by the Defendants otherwise than in good faith;

(d)   I do not accept Mr Chai’s submissions that the application for amendments amount to any strategic manoeuvring;

(e)   No trial date has been fixed.

(f)   In respect of the balance of prejudice to the parties, if the applications for amendments are allowed, Chow will have to adduce evidence to prove the matters which he says are coveredby the admissions.  That is not going to be particularly onerous,as he will have to give evidence in any event on the other elements of his claim. But if the applications were refused, the Defendants would in effect be forced to adhere to a pleaded case which Ng has said in his witness statement to be incorrect.  They would be prevented from advancing their factual case which they aver represents the truth.  The resulting prejudice would be grave.

(g)   In the circumstances, to give effect to the overriding objective, the Court in my view should in any event exercise its discretion in favour of granting the applications.

CONCLUSION AND DISPOSAL

38.  For the reasons given above, I dismiss Chow’s appeals.  I also make an order nisi that Chow should bear the costs of and occasioned by both appeals.