TOP EXPRESS ENGINEERING LTD AND ANOTHER v. KAM KIN ENGINEERING LTD AND OTHERS

HCA2590/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2590 OF 2003

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J U D G M E N T

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1. This is an appeal from a Decision of Master Jack Wong when he ordered the plaintiffs to provide the further and better particulars sought by the defendants.  The plaintiffs appeal against this order.

2. Put very simply the issue in this litigation is the extent (if any) to which the 1^st defendant is to be held liable for what has been described as the hijacking of cables belonging to PCCW when laying down cables pursuant to a contract they entered into with the plaintiffs.

3. Ms Jennifer Tsui for the defendants has helpfully set out in her skeleton argument particulars of the two requests which were the subject matter of the hearing before the learned master.  They are as follows.

The first request

4. Under paragraph 11 of the Statement of Claim :

“…Upon investigation, it was found the 1^st Defendant was responsible for such malpractice.”

The defendants’ request :

“i.    Please state whether there were other sub-contractors previously assigned to do jobs on the Plaintiffs’ sites before jobs were assigned to the 1^st Defendant?

ii.     If the answer to (i) is yes, please give the names of the relevant sub-contractors.

iii.    Please state whether there were other sub-contractors subsequently assigned to do the jobs on the Plaintiffs’ sites after the 1^st Defendant left the sites.

iv.    If the answer to (iii) is yes, please give the names of the relevant sub-contractors.”

The plaintiffs’ answer :

“The matters requested for further and further particulars hereinabove are not particulars of pleadings but rather evidence, part of which has been disclosed in the Plaintiffs’ investigation report (Item 25 of the Plaintiffs’ List of Documents filed and served on 19^th April 2004) and part of which will be covered by the witness statements of the Plaintiffs, to be exchanged and filed in due course.”

The second request

5. Under the plaintiffs’ answer (iii) to paragraph 9 of the Statement of Claim (page 20) filed on 19 October 2004) :

“There were other sub-contractors found to be using cables used to belong to PCCW without approval for renting the cables.”

The defendant’s request :

“Please give the names of each and every of those sub-contractors and particularize each and every occasion on which the said sub-contractors were found to be using cables used belong to PCCW without approval including the dates and the names of the buildings in which the said cables were used.”

6. With respect I agree with the master’s statement of the relevant principles which govern an application of this nature.  He states at paragraph 10 of his Decision :

“      To start with, paragraph 18/12/1 HKCP 2004 at page 297 succinctly summarize the relevant principles as to why particulars are ordered :

‘… The requirement to give particulars reflects the overriding principle that the litigation between the parties, and particularly the trial, should be conducted fairly, openly, without surprises and, as far as possible, so as to minimize costs.  In Aktieselskabvet Dansk Skibsfinansiering v. Wheelock Marden & Co. Ltd [1994] 2 H.K.C. 264 Bokhary J.A. [as he then was] said at 269E–270E that the functions of properly particularized pleadings are as follows :

(1)   to inform the other side the nature of the case that they have to meet as distinguished from the mode in which that case is to be proved;

(2)   to prevent the other side from being taken by surprise at the trial;

(3)   to enable the other side to know what evidence they ought to be prepared and to prepare for the trial;

(4)   to limit the generality of the pleadings, the claim and the evidence;

(5)   to limit and define the issues to be tried, and as to which discovery is required;

(6)   to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given with supports any material allegation in the pleadings)…’”

7. However where I find myself in disagreement with the master is his application of these principles to the present case.

8. In my view the particulars sought by the defendants do not fall within the ambit of any of the six matters referred to by Bokhary JA.

9. I agree with Mr Meyrick Wong for the plaintiffs that the plaintiffs have sufficiently pleaded their case to enable the dependants to know fully the case they have to meet and that they are able to prepare their defence accordingly.

10. It seems to me that what the defendants are seeking to obtain is evidence which will assist them in the preparation of their defence.  The dependants are not entitled to have this.

11. It is for this reason that I allow the appeal and order that the defendants’ Summons of 12 January 2005 be dismissed.  I will hear the parties as to costs.