LUEN TAT WATCH BAND MANUFACTURER LTD v. STEPHEN LIU YIU KEUNG AND ANOTHER

HCMP 1567/2021

[2026] HKCFI 2564

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1567 OF 2021

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J U D G M E N T

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Table of Contents

INTRODUCTION

1.  This is the trial of the committal application brought against Mr Stephen Liu (the 1^st defendant) and Mr David Yen (the 2^nd defendant) for breach of orders made against them in the High Court proceedings in HCMP 1071/2018. The plaintiff in both this application and the HCMP proceedings is Luen Tat Watch Band Manufacturer Ltd.

2.  The plaintiff was formerly subject to a winding up order, which was later stayed permanently. Between 13 October 2010 and 27 November 2017, Liu and Yen, who were during that period managing directors of Ernst & Young Transactions Ltd, were appointed as its joint and several liquidators. By order made by Deputy High Court Judge To on 27 November 2017, they were removed as liquidators by reason of their misconduct. In this judgment, I shall call the removal proceedings and the judge’s written decision “the removal litigation” and “the removal decision”.

3.  Shortly after the removal, in December 2017, the plaintiff requested the return of all documents kept by the defendants in their administration of the liquidation. This marks the beginning of a prolonged and protracted dispute over the return of the documents, which has eventually given rise to the present committal application.

4.  In February 2018, the defendants started to return some of the plaintiff’s documents. In the course of 2018, a total of 95 carton boxes of documents and two box files of documents were returned. They included financial documents, transactional documents, liquidation documents, corporate documents and external correspondence. The last item included external emails sent or received by the defendants and their team at Ernst & Young over the seven-year period whilst the defendants were liquidators. I shall call the process of returning the documents in 2018 “the 2018 production”.

5.  Not satisfied, the plaintiff commenced proceedings in HCMP 1071/2018 seeking the return of its documents. The court found for the plaintiff and made orders which form the subject matter of the present committal application.

The orders

6.  On 7 October 2020, Deputy High Court Judge Le Pichon ordered the defendants to:

(1)  hand over the documents set out in Schedule 1 of the amended originating summons to the plaintiff within 28 days; and

(2)  make an affidavit confirming that they have already handed over all the Schedule 1 documents to the plaintiff within 7 days after that.

7.  Schedule 1 read:

“All the books, records, accounts, papers of the Plaintiff and other documents, material or items of whatever description generated in the course of the liquidation of the Plaintiff and/or in the course of acting as the liquidators of the Plaintiff (in whatever forms, whether hard copies or electronic form(s) or in other form(s)) which are kept by or in the possession, power, custody or control of the Defendants, including but not limited to:

(a) all correspondence (including but not limited to email) and attachments thereof which the Defendants (and/or their agents, employees, servants, contractors) issued or received;

(b) all legal opinion(s) and advice(s) provided by Counsel or solicitors to the Defendants (in whatever form including but not limited to email);

but excluding documents subject to legal professional privilege that are solely in respect of the Defendants’ personal liabilities (if any).”

8.  About one month after the order was made, the defendants filed a notice of appeal and applied for stay of execution.

9.  On 31 March 2021, the stay application was dismissed by Recorder Houghton, SC. In the same order, a time extension of 28 days was granted. The return deadline therefore fell on 28 April 2021.

10.  In this judgment, I shall call the orders in paras 6(1) and 6(2) “the production order” and “the affidavit order”, respectively, and “the orders”, collectively. The former term should be taken to mean either that order or that order as varied by the subsequent time extension order. I shall use the term “Schedule 1 documents” to refer to the documents which are ordered to be handed over under the production order. I shall refer to the proceedings in HCMP 1071/2018 as “the production litigation”, the written decision of DHCJ Le Pichon “the production decision”, and the written decision of Recorder Houghton, SC “the stay decision”.

The April production

11.  On the deadline of 28 April 2021, the defendants delivered 49 boxes of Schedule 1 documents to the plaintiff.

12.  On 5 May 2021, Yen filed his 6^th affidavit, in which he detailed the steps taken to retrieve the Schedule 1 documents. He concluded by stating this:

“I verily believe that I have returned all documents responsive to the Le Pichon Order by taking the abovementioned steps.”

13.  On the same day, Liu filed an affirmation, in which he stated:

“I confirm that, to the best of my information, knowledge and belief, the documents responsive to the Le Pichon Order collated as described in the Sixth Affidavit of Yen Ching Wai David dated 5 May 2021 have been returned to the Plaintiff on 28 April 2021.”

14.  In this judgment, I shall refer to the defendants’ return of the documents on 28 April 2021 as “the April production”. I shall call Yen’s 6^th affidavit and Liu’s affirmation “the confirmatory affidavits”.

15.  The defendants contend that by making the April production, they had complied with the production order, and by making the confirmatory affidavits, they had complied with the affidavit order.

16.  The plaintiff thought (and still thinks) otherwise. After some correspondence, it commenced the present committal application by way of originating summons dated 11 October 2021. (The originating summons was later amended on 9 November 2023.)

Two post-deadline productions

17.  According to the defendants, with a view to ensuring the completeness of the production, they voluntarily handed over further documents after the deadline. They delivered 8 boxes on 24 December 2021 and a further 4 boxes on 28 July 2023. I shall call the two post-deadline handovers “the December production” and “the 2023 production”.

18.  As mentioned above, in the 2018 production, various categories of documents and external correspondence had already been handed over. The production order was therefore primarily (though not solely) about retrieving and returning internal working documents and emails generated by the defendants, their team and the administrative staff at Ernst & Young in the course of the liquidation.

19.  Ernst & Young did not have a centralised system for storing these internal documents. They were scattered across the employees’ laptop computers and email inboxes. And, according to the defendants, that had caused huge difficulties for them to retrieve these internal documents. In this judgment, I shall use either the term “custodian”, which is used by the defendants, or the term “employee” to refer to fee earners at Ernst & Young who had worked on the liquidation during the seven-year period. The defendants had identified them by looking for those employees who had entered time on this file. At the time of the April production, 15 of them still remained with the firm, and 36 of them had already left employment. I shall call them “the existing employees” and “the former employees”, respectively.

A brief introduction of the plaintiff’s case

20.  The plaintiff’s case can be outlined as follows.

21.  First, as a matter of construction, the production order requires the defendants to hand over all Schedule 1 documents kept by them. That was the state of affairs which the defendants were ordered to achieve by 28 April 2021.

22.  Second, however, in the April production, the defendants failed to hand over all the Schedule 1 documents. The confirmatory affidavits were therefore false. The defendants were in breach of both the production order and the affidavit order.

23.  And that was because the methodology adopted by the defendants based on 85 keywords was demonstrably unable to achieve the result mandated by the production order. They had to do more and could have done more, including a manual document review which they had adopted in the 2018 production.

24.  As to why the plaintiff says that the defendants’ methodology was deficient and resulted in numerous Schedule 1 documents not being produced, the following seven complaints are set out in the amended statement:

(1)  Instead of conducting a manual review, the defendants came up with a selection of 85 keywords, and applied them on the documents and emails found on the custodians’ laptop computers in order to retrieve the Schedule 1 documents. This methodology would effectively screen out any documents which fell within the ambit of Schedule 1 but somehow did not contain any of the 85 keywords. The plaintiff refers to this as “the keyword search issue”.

(2)  Ernst & Young maintained a backup of emails on Lotus Notes, the email system which the firm used until late 2014. In the April production, a search was conducted on the Lotus Notes backup emails. It was however done only for five existing employees, but not for the 36 former employees. I shall refer to this as “the Lotus Notes backup issue”.

(3)  At the time of the April production, among the 15 existing employees, a search was conducted on the laptop computers of only six of them. This is “the 15 custodians issue”.

(4)  Since late 2014, Ernst & Young uses Microsoft Outlook as their email system. In addition to reviewing documents found on the laptop computers of the 15 existing employees, the defendants should have reviewed their emails on the Microsoft Exchange server as well, but failed to do so. This is “the Microsoft Exchange server issue”.

(5)  The defendants handed over more than 1,500 double-sided pages of emails that were completely unreadable and/or corrupted. They should have handed over the documents in the original, readable and uncorrupted forms. The plaintiff refers to this as “the corrupted documents issue”.

(6)  The defendants did not review, retrieve or hand over emails and documents of the support and administrative staff, which have been referred to by the defendants as “the Category C documents”. This is “the Category C documents issue”.

(7)  The defendants failed to hand over the adjudication summaries for five proofs of debt. The plaintiff refers to this as “the missing POD summaries issue”.

25.  The plaintiff further contends that the December production and the 2023 production is indisputable proof of the defendants’ breach of the production order.

26.  Third, the breach was intentional because the defendants voluntarily and consciously chose to adopt their methodology in the April production. This amounts to a state of mind punishable by contempt.

27.  Fourth, even taking into account the December production and the 2023 production, as of now, the defendants have still failed to hand over all Schedule 1 documents. The committal application is therefore appropriate and necessary. Committal is indeed the plaintiff’s “last resort”.

A brief introduction of the defendants’ case

28.  A prominent and persistent theme running through the defendants’ case is that a huge volume of documents, among them numerous emails, were generated over the seven-year period, and that a massive electronic document review exercise was required to be undertaken in order to comply with the production order, and was indeed undertaken resulting in the April production. It involved electronically searching 1.75 million documents, and manually reviewing 60,000 documents. Against this context, the defendants’ case is briefly as follows.

29.  First, as a matter of construction, the production order requires them to conduct a reasonable search of the Schedule 1 documents, rather than to produce every single document without exception. Notwithstanding the word “all” in the order, a reasonableness test applies such that as long as reasonable steps are taken, the order is not breached even if some documents are missing.

30.  Second, there was no breach as their methodology, developed with input from legal, forensics and IT experts, was a reasonable one.

31.  Third, the mens rea requirement is not satisfied. The defendants reasonably believed that the 85 keywords selected by them would identify all documents responsive to the production order, and did not intentionally omit any keywords which they knew would result in the exclusion of responsive documents. Any gaps in the April production did not result from intentional exclusions of documents or sources of documents. They therefore fall squarely within the “accidental” exception for contempt purposes – the gaps were not consciously excluded; the omission was accidental.

32.  Fourth, the defendants’ commitment to comply with the production order was clear from the large scale of the April production. They had all along made clear that they would act on any reasonable request made by the plaintiff. They voluntarily handed over further documents in the December production and in the 2023 production. A committal application was never necessary to secure their return. Under the last resort principle as explained by the Court of Appeal in China Metal Recycling (Holdings) Ltd v Chun Hei Man [2018] 1 HKLRD 455, the committal application should not have been taken out.

33.  Fifth, in any event, the production order has been complied with, at the latest, by the time of the 2023 production. If there were any prior breach, the breach has now been purged. In the circumstances, the court should not commit the defendants for contempt.

The core issues

34.  This is a case of civil contempt. In Hong Kong, the leading authority is the Court of Final Appeal decision in Kao, Lee & Yip v Koo Hoi Yan (2009) 12 HKCFAR 830. The court adopts a three-stage approach: para 21. It should:

(1)  first, construe the order so as to ascertain its meaning and operation;

(2)  second, determine whether the defendant has in fact complied with the order as so construed; and

(3)  third, consider whether any failure to comply was accompanied by the state of mind necessary to establish punishable contempt.

35.  The plaintiff and the defendants hold starkly different positions on these issues. In addition, two other issues are contentious:

(1)  Is it a case in which the plaintiff should not have commenced the committal application under the last resort principle?

(2)  If the court finds in favour of the plaintiff on all the above four issues, have the defendants now purged the contempt by the December production and the 2023 production? If so, what order should the court make? Should the purge be taken into account when the court determines liability? Or does it only go to mitigation?

36.  It should be obvious that the focus of this case is the April production. The three-stage questions are to be asked in respect of this round of production as the question of whether there was a breach is to be determined with reference to the deadline of 28 April 2021. If there was a breach then, anything done after that deadline would not alter that fact. The subsequent conduct of the defendants, including the December production and 2023 production, is however still relevant in the following ways.

37.  First, if the plaintiff’s construction of the production order is correct, the two subsequent productions are plainly proof that the April production was not adequate. I have been shown some samples of documents produced in the December production. Some of them are, as a matter of fact, different documents from those contained in the April production. This means that the defendants had failed to hand over all Schedule 1 documents in the April production.

38.  Second, if the defendants are correct in saying that latest by the time of the 2023 production, they have returned all Schedule 1 documents, the purging of the contempt will have an impact on the ultimate order the court should make.

The evidence

39.  At the trial, the plaintiff called Ms Seline Li as witness. She is a director of the plaintiff.

40.  At the close of the plaintiff’s case, both Liu and Yen elected to testify. They also called Mr Steven Huen as witness. Huen was an in-house legal counsel at Ernst & Young Hong Kong. He assisted the defendants in the April production and the December production. By the time of the trial, he had left the employment of Ernst & Young. He is now in-house legal counsel in another international auditing firm.

41.  It is worth highlighting at the outset that this case does not, on the whole, turn on the resolution of factual disputes. There are a few discrete matters on which factual findings should be made. For instance, the existence of the adjudication summaries under the missing POD summaries issue. Another example is the defendants’ knowledge of the IT system at the time of the April production. Apart from these matters, the primary facts in this case are largely uncontroversial in the following sense.

42.  The plaintiff has no first-hand knowledge of how the defendants had created, filed and stored the documents relating to its liquidation within their own system. Nor does it have any first-hand knowledge as to what the defendants actually did in order to retrieve and return the Schedule 1 documents, and what they knew (and did not know) at the time. The plaintiff’s case is premised on the defendants’ own narrative on these matters. The plaintiff is saying that based on what the defendants say about them in correspondence and in these proceedings, they were in breach of the orders with the necessary mens rea.

43.  In other words, the outcome of this committal application does not really turn on the credibility of the witnesses (save for a few discrete factual disputes). The court’s task is primarily to apply the principles as explained in Kao, Lee & Yip and China Metal to the primary facts.

44.  At the trial, the plaintiff was represented by Mr Wong Yan Lung, SC leading Mr Martin Kok. The defendants were represented by Mr José-Antonio Maurellet, SC leading Mr John Hui.

THE BACKGROUND

45.  The plaintiff was part of the Luen Tat group of companies founded by the late Mr Lee Sai Nam in the 1970s. The group was in the business of manufacturing and trading watchbands and stainless-steel accessories. His three children, Seline Li, Ken Li and Richard Lee, used to work for him in the group.

46.  The father was the sole beneficial owner of the plaintiff. But his shares were held by Ken Li and Richard Lee on trust for him.

47.  Since around 2008, Ken Li started disputing the father’s ownership of the shares. The father was ousted from the management of the group. That led to the father commencing two actions in 2009:

(1)  In HCCW 497/2009, the father sought to wind up the plaintiff on the just and equitable ground.

(2)  In HCA 1711/2009, the father sought a declaration that he was the sole beneficial owner of all the shares in the plaintiff. I shall call this “the father and son litigation”.

48.  In July 2010, the plaintiff was ordered to be wound up.

49.  Following a trial in 2014, the court found in favour of the father in the father and son action. Ken Li’s appeal against that decision was dismissed in January 2017. These proceedings therefore finally resolved the ownership issue in favour of the father.

The removal litigation

50.  By order made by DHCJ To in November 2017, the winding up order of the plaintiff was stayed permanently, and the defendants were removed as liquidators on the ground of misconduct. Relevant to this committal application are the following adverse findings made against the defendants, expressed in exceptionally critical terms by the judge.

51.  The defendants entertained spurious proofs of debts in favour of Ken Li and his camp. Their conduct showed their bias in favour of Ken Li and against the father. These are some of the judge’s comments:

“Any reasonable liquidator would have respected the CFI Judgment and rejected Ken’s claim as bogus. But, instead of paying heed to the CFI Judgment, the Liquidators kept this, what I call an “empty”, proof alive for nine months. …  This shows the length to which the Liquidators were prepared to go in siding with Ken. This is positive assistance which could not have been the result of an error of judgment. It is clear evidence of bias.”

“On any view, such conduct demonstrated that they were determinedly biased in favour of Ken against the Father and his camp. They have forgotten that they are officers of the court and are now pursuing their own agenda and the interest of their new master. Their conduct certainly gives rise to a real and reasonable loss of confidence in them by the contributories.”

52.  The defendants decided to forego investigations and claims against Ken Li and his camp. The judge said:

“Their behaviour left me in no doubt that they were protective of Ken and were heavily bias in favour of him against the Father. They were not acting in the best interest of the Company but in Ken’s best interest. They have forgotten they are officers of the court and have acknowledged Ken as their new master. They have forfeited the confidence of this court.”

53.  The defendants positively assisted Ken Li in the father and son litigation. This is what the defendants did:

“On the fact, the Liquidators sent a manager to attend court throughout the trial of the Main Action. In the middle of the trial, the Liquidators even compiled and provided, on an urgent basis, detailed accounting documents in support of Ken’s case. Deputy Judge Leung refused to allow Ken to adduce those documents. What is significant is the deputy judge’s observation that those voluminous documents were not primary documents but secondary documents specifically compiled by the Liquidators for Ken’s use. The Liquidators were not assisting the court or protecting or advancing the Company’s interest, but assisting Ken personally.”

54.  The defendants’ appeal against the removal decision was dismissed by the Court of Appeal on 27 April 2021.

The production litigation

55.  Following the removal decision, upon requests made by the plaintiff, the defendants made the 2018 production. That was done in batches during a period of seven months from February to September 2018.

56.  The plaintiff was not satisfied with that. By July 2018, in relation to emails, the defendants had only managed to hand over those up to January 2013. This meant that at least another five years’ worth of emails had yet to be returned. The plaintiff commenced the production litigation in July 2018. (To complete the chronology, I should add here that at about the same time, the plaintiff commenced an action in HCA 1397/2018 against the defendants claiming breach of fiduciary duties. I shall call this action “the breach action”.)

57.  The defendants opposed the production application. In the end, on 7 October 2020, DHCJ Le Pichon found in favour of the plaintiff and made the production order. I highlight two material matters in the production decision which are relevant to the construction issue and the last resort issue.

58.  First, the court effectively accepted the plaintiff’s ground for seeking the Schedule 1 documents, which was that the relationship between a company and its liquidators is essentially that of principal and agent, the plaintiff has a broad entitlement to the documents or records retained by the agent in the course of its agency insofar as such documents or records concern or relate to the principal’s affairs, and all such documents belong to the principal and have to be delivered up on the termination of the agency: paras 18 to 20. The defendants made the submission (recorded in para 26) that the principal is not entitled to all the documents brought into existence by the work in question and it is necessary to see for what purpose the documents had been brought into existence. The court rejected that submission and held:

“59. It will have become apparent that I do not regard the so-called hurdles put forward by the Defendants as entitling the Defendants to retain documents generated in the course of liquidation and/or in the course of acting as liquidators of the Plaintiff.

60. Even if there are documents that arguably the Defendants are entitled to retain, it would not affect the ultimate outcome given the facts of the present case in view of the fact that the Defendants (unlike the receivers in Gomba) have not discharged their burden of showing what categories of documents they should not produce.”

59.  Second, the judge was highly critical of how the defendants had behaved themselves in the 2018 production. Her Ladyship said:

“63. The Defendants are office-holders. The production of documents in dribs and drabs over a nine-month period and a ‘further’ delivery made some 7 months after that is not conduct commensurate with that to be expected of office-holders. It is inexcusable. It inevitably casts doubt on their suitability for appointment as liquidators.

64. The Defendants are the only persons with knowledge of what documents have been generated during their time in office which spanned over 7 years and in respect of which they have been handsomely remunerated.

65. It defies belief that they had the temerity to submit that “it would be incumbent upon the Plaintiff to identify the documents to which it claims to be entitled with some precision such that this Court can determine the issue in accordance with the evidence.

66. That submission reflects badly on the Defendants who, as officeholders, should adhere to higher standards. In my view, they have conducted themselves disgracefully in this saga, and deserves sanction.”

60.  A 28-day deadline was imposed. About one month later, the defendants lodged an appeal against the decision and applied for stay of execution pending appeal.

61.  On 31 March 2021, Recorder Houghton, SC dismissed the stay application. I would highlight two matters recorded in the stay decision.

62.  First, the recorder took note of the defendants’ submission concerning the large scale of the production exercise: para 29. The defendants’ evidence before the court was that:

“the process required for the handing over of the Schedule 1 Documents is extremely time consuming, costly and burdensome”

63.  Second, the recorder recorded that the defendants sought a time extension of 56 days should the court refuse to grant a stay pending their appeal. The recorder acknowledged that the exercise would clearly be “substantial” but commented that it “should have been in progress since the Order was made”. He granted a time extension of 28 days.

64.  The defendants did not renew the stay application with the Court of Appeal. In fact, shortly afterwards, they abandoned their appeal.

The correspondence

65.  While the stay application was ongoing, the defendants made a proposal to the plaintiff. In Yen’s 4^th affidavit, the defendants classified Schedule 1 documents into three categories:

(1)  Category A – draft liquidators’ reports, working papers, and other documents from other teams of Ernst & Young which were stored in servers;

(2)  Category B – internal emails of fee earners, for which there was no central storage system; and

(3)  Category C – documents and emails of support and administrative staff.

66.  Hogan Lovells, who were solicitors then acting for the defendants, wrote in a letter dated 27 November 2020:

“As explained in the Fourth Affidavit [of Yen], the scale of the exercise to comply with the Le Pichon Judgment is time consuming, labour intensive and burdensome. The scope of the Le Pichon Judgment is extremely broad as it includes documents generated from other teams within Ernst & Young, regardless of how miscellaneous and inconsequential the document is, as long as they were generated in the course of the liquidation of Luen Tat and/or in the course of acting as the liquidators of Luen Tat.”

67.  The solicitors then proposed to apply a set of search terms on the email inboxes, retrieve the responsive emails and limit the review exercise to those emails:

“instead of embarking on the full email review of the Category B and C documents …, the parties should endeavour to agree on a set of search terms to be applied to only our clients’ email inboxes between 24 June 2010 to 27 November 2017, and that the email review portion of the disclosure exercise be limited to the same. This is on the basis that our clients would have been copied in every significant and consequential email which would be of interest to Luen Tat, namely to “ascertain the full extent of their wrongdoings that were committed on Luen Tat” … We therefore consider that the proposed method of disclosure is sensible and reasonable and achieves Luen Tat’s stated purposes. …”

68.  The proposed search terms were listed in an annex to the letter. It contained 55 terms. I reproduce the annex to this judgment under “Annex 1 – The 55 keywords”.

69.  The plaintiff’s solicitors, Joseph SC Chan & Co (“JSCC”), replied by letter dated 7 December 2020 seeking clarification on a number of matters, pointing out that the defendants had a duty to locate all documents responsive to the order, and that they knew nothing about the system of storage of emails maintained by Ernst & Young and it would be practically impossible for them to decide which would be the best or suitable method to locate the documents.

70.  By letter dated 10 December 2020, Hogan Lovells made a reply. They made a point of noting the plaintiff’s “wholesale refusal to narrow down the email review and come to a reasonable methodology”. They then reiterated what they saw as the purpose of the handover, namely that it was to enable the plaintiff to ascertain the full extent of the defendants’ wrongdoing. They wrote:

“We have proposed an extensive set of search terms containing relevant terms relating to all allegations made against our clients, to be applied to our clients’ inboxes. No explanation has been provided by you as to why this would not be an appropriate method for obtaining relevant documents to demonstrate our clients “wrongdoings” (or lack thereof). The application of search terms is a common method used in document review exercises in litigation or investigations. If anything, search terms assist in uncovering documents that are actually relevant to the purpose of the review.”

71.  JSCC did not reply to this letter.

THE APRIL PRODUCTION

72.  On 28 April 2021, the defendants made the April production.

73.  It is necessary to set out the methodology adopted by the defendants.

Documents stored in centralised servers

74.  For documents stored in centralised servers dedicated to the plaintiff’s liquidation, including, eg, draft liquidators’ reports and working papers and documents generated by the tax team, they were downloaded from the servers. However, before they could be handed over, each of them needed to be checked to see whether they contained any documents relating to other clients. They might do so because documents from other client files might have been used as templates.

75.  This was done by a manual review of these documents, which came to a total of 7,922 pages. According to the defendants, the process was substantial. As of 5 November 2020, six fee earners had spent 171 manhours reviewing the documents.

Internal emails of fee earners

76.  There was no centralised system within Ernst & Young for storing internal emails of the fee earners who had worked on the plaintiff’s liquidation. They existed on the computers of the individual fee earners and their email inboxes. With the advice from Hogan Lovells and Ernst & Young’s forensics and IT teams, the defendants devised the following methodology for retrieving these internal emails.

77.  First, these fee earners were identified by checking who had entered time on the Luen Tat file from June 2010 to the time when the defendants were removed as liquidators. As mentioned above, 15 existing employees and 36 former employees had worked on the file.

78.  Second, the laptop computers of the 15 existing employees were collected. For the 36 former employees, their laptop computers would not be available for searching as they would have been reformatted and recycled for use by new joiners in accordance with the usual procedure of the firm.

79.  Third, the usual document hold process then took place. A document preservation notice was issued to each of the 15 existing employees. They each responded to the notice and, six of them (including Liu and Yen) confirmed that they held documents responsive to the production order.

80.  Fourth, the laptop computers of these six existing employees were imaged. Around 1.75 million electronic documents including emails were retrieved.

81.  Fifth, old emails from the Lotus Notes backup were extracted for five out of these six existing employees. The sixth had no data before late 2014. In his 6^th affidavit, Yen explained:

“During the processing of the data by the forensics team, they have noted and informed me that 5 out of 6 custodians had data dated before late 2014, the time when Ernst & Young changed the email system from Lotus Notes to Microsoft Outlook. Given that the firm maintains a backup of emails at the time Lotus Notes was used, for completeness they have also retrieved Lotus Notes data of the 5 custodians from the backup with the help of the IT team.”

82.  Sixth, all these documents were then uploaded to Relativity, a document review platform. A de-duplication exercise was then performed to remove duplicated documents. Following this process, the pool of documents was reduced to around 400,000.

83.  Seventh, the forensics team searched through these documents using 85 selected keywords. The list of the 85 keywords is now reproduced in Annex 2 to this judgment. Around 60,000 responsive documents were identified. On the choice of these key words, Yen said:

“These keywords were chosen upon discussion with my lawyers and I believed it would be able to catch the relevant document and emails exchanged in relation to the liquidation of Luen Tat.”

84.  Eighth, the 60,000 documents were then individually and manually reviewed by Yen and 10 members of staff at Ernst & Young. During the review, a number of documents containing information of other client matters were identified. For example, there was an email circulated internally containing a status update on various ongoing client matters. Such documents were redacted prior to being handed over to the plaintiff.

85.  Ninth, in the process, the defendants also returned about 200 emails together with their attachments which were corrupted in that symbols were shown in place of text. Yen said in his 6^th affidavit:

“In addition, during our review of documents, my team noticed that there were documents that were corrupted where symbols have shown up in place of text. My team have asked the forensics team to try and recover these corrupted documents, however, there are about 200 emails and their attachments that were not recoverable. In any event, these documents have also been returned to Luen Tat.”

86.  Tenth, after the review, the forensics teams helped to export the relevant emails from the document review platform. A total of 49 boxes of documents were delivered to the plaintiff.

Correspondence post-April production

87.  The plaintiff was not satisfied with the April production. It took the view that it was plainly deficient and inadequate.

88.  Correspondence was exchanged between the two sides’ solicitors between late June and late August 2021. The significance of the correspondence is that they predated the commencement of the committal proceedings in October of the same year. It is necessary to refer to some of the contents as they are relevant to the last resort issue. By the time of the correspondence, the defendants had changed their solicitors from Hogan Lovells to Davis Polk & Wardwell.

89.  On 25 June 2021, JSCC issued a 17-page letter on behalf of the plaintiff expressing their dissatisfaction. I highlight the following complaints made in the letter.

90.  First, the plaintiff was of the firm view that the defendants were in breach of the production order and the affidavit order.

91.  Second, not all backup emails of the fee earners who had worked on the liquidation had been searched. The letter referred to the fact that more than 30 fee earners had charged the plaintiff for work done before late 2014. Yet the defendants had not searched the backup emails of these fee earners. JSCC wrote:

“In the course of the liquidation of Luen Tat, more than 30 fee earners of Ernst and Young have charged Luen Tat for their work before late 2014. It is jaw-dropping that the Defendants only caused the search of the emails of only 5 out of these 30 plus fee earners.”

92.  Third, as to documents generated after late 2014, the defendants should have reviewed the documents kept at the Microsoft Outlook accounts of all the 15 fee earners who remained at the firm, instead of just the five or six fee earners.

93.  Fourth, the use of the 85 keywords was not appropriate. It did not amount to a full review of the documents kept by Ernst & Young. It would only identify some but not all Schedule 1 documents. The complaints about the keywords included:

(1)  The documents to be handed over should not be confined to those regarding the wrongdoing of the defendants.

(2)  The use of keywords such as “Ken Li” would not retrieve emails in which the person was referred to by his first name only.

(3)  The use of keywords such as the full name “Lee Sai Nam” would not retrieve emails in which the person was referred to by his initials, eg “LSN”.

(4)  The list of keywords did not include any Chinese character.

(5)  Not all the legal proceedings which took place in the course of the liquidation were included.

94.  Davis Polk gave a short reply by their letter dated 8 July 2020. They stated that the defendants had complied with the production order and the affidavit order. They emphasised that given the large volume of electronic documents, it was necessary to implement a process to identify documents responsive to the orders and it was standard practice to apply an extensive list of keywords in the exercise. They stated that contempt was a remedy of last resort, and if there was any disagreement between the parties, the proper course was to apply to the court for directions.

95.  Later, by letter dated 27 July 2021, Davis Polk gave a substantive reply. It was reiterated that the defendants’ methodology was appropriate, and that they had complied with the orders. However, without derogating from that position, they would respond to the plaintiff in the spirit that “any document production methodology could be the subject of reasonable and sensible dialogue”. They made the following suggestions:

(1)  They would look into the Lotus Notes backup of the 36 former employees. The letter read:

“We are considering with our clients the viability of running searches against backed up Lotus Notes data of fee-earners who have left Ernst & Young but who worked on Luen Tat in or before 2014. This is a technically complicated process but we will revert as soon as we have the information necessary to inform our response.”

(2)  They were prepared to search against more keywords. A list of 112 additional keywords was annexed to the letter. I reproduce the list in Annex 3 to this judgment.

96.  The plaintiff did not respond to the letter. By letter dated 23 August 2021, Davis Polk followed up with their suggestions:

(1)  The defendants had now completed the retrieval of the Lotus Notes backup of the 36 former employees.

(2)  The 112 additional keywords had been applied across the original set of data whereas the original 85 keywords and the additional 112 keywords had been applied to the Lotus Notes backup data recently retrieved.

(3)  These additional steps resulted in the identification of approximately 67,000 additional documents.

(4)  Further analysis would be conducted, and the plaintiff would be provided with an update on the expected timing of production in due course.

97.  By letter dated 24 August 2021, JSCC commented that the keyword search “self-evidently cannot identify all the documents”. They further wrote:

“Given the above, our client shall have no alternative but to consider taking out committal proceedings against your clients.”

98.  This was followed by the exchange of two more letters.

99.  By letter dated 26 August 2021, Davis Polk complained that the plaintiff was insisting on a “manual review” of “each and every one of the millions of documents in the laptops and/or Lotus Notes backups of the 36 additional custodians now identified”, which was an untenable position to take. But they would continue to work on “a final production” as previously suggested.

100.  By letter dated 31 August 2021, JSCC expressed their disagreement, repeating their view that any production based on the proposed keyword search approach would be “fundamentally deficient, defective, and incomplete”. They therefore had no alternative but to consider taking out committal proceedings.

THE DECEMBER PRODUCTION

101.  About two and a half months after the commencement of the committal application, the defendants made the December production. Eight A4 boxes containing 1,026 documents were handed over. An email and its attachment were treated as a single document for this purpose.

102.  In this section, I shall set out:

(1)  the defendants’ methodology for the December production;

(2)  the result of the exercise;

(3)  Yen’s evidence on why the Lotus Notes backup emails of the former employees were not retrieved in the April production; and

(4)  the plaintiff’s contention that the December production was still inadequate.

The methodology

103.  The documents were retrieved with the assistance of Ernst & Young’s IT and forensics teams, adopting the following methodology.

104.  First, the Lotus Notes backup emails were restored for the 36 former employees. This resulted in the retrieval of 1.1 million documents. After de-duplication, the pool was reduced to 750,000 documents.

105.  Second, as regards the nine existing employees whose laptop computers were not imaged in the April production, the following steps were taken:

(1)  Two of them had historically recorded more than 50 hours of time. Their laptop computers were imaged, and their Lotus Notes backup emails restored. This resulted in the retrieval of 416,000 documents.

(2)  One of them only started to work on the liquidation in 2018, which is after the conclusion of the liquidation. There was therefore no need to check her emails.

(3)  The remaining six had historically recorded very low amounts of aggregate time, ranging from 30 minutes to 31.5 hours. No documents were retrieved from them. Yen explained the steps taken in his 6^th affidavit:

“I am advised that our in-house legal team spoke with each of them and they each conducted keyword searches against Luen Tat on their laptops. No documents were identified, reinforcing their responses to the document production notice.”

106.  Third, 112 additional keywords were chosen. Both these new keywords and the 85 original keywords were then applied to the emails retrieved in this round, and the additional keywords were applied to the original data. This process identified 88,000 documents.

107.  Fourth, Davis Polk then undertook a number of steps on these 88,000 documents, including:

(1)  They conducted sample reviews on documents responding to the generic terms “IRD” (for Inland Revenue Department) and “CCB” (for Commercial Crime Bureau), and also on other documents. The vast majority turned out to be related to other clients of Ernst & Young.

(2)  Based on the false hits, Davis Polk came up with a list of exclusionary search terms (eg names of other clients).

(3)  These terms were then applied to the pool of documents to exclude unrelated documents.

(4)  Quality check processes were performed on the excluded documents to see if any Schedule 1 documents were erroneously excluded.

(5)  Davis Polk then conducted manual review of each of the remaining documents.

The result

108.  The above steps resulted in the identification of 2,890 documents for production. They amounted to 1,026 documents if an email and its attachment were counted as one document.

109.  Of these 1,260 documents, Huen described 696 of them as “near duplicates”, meaning that they are documents which are at least 80% similar to documents already produced in the previous rounds of production. Huen said:

“It is likely that these have been provided or substantially provided earlier but, for the avoidance of doubt, these have been provided to Luen Tat again for the sake of completeness.”

110.  Of the remaining 330 documents, Huen described them as “newly” produced documents:

“I understand that some of these documents may previously have been returned to Luen Tat but have not been removed via de-duplication because of minor variances in formatting or because they are very similar but not identical to documents previously returned (e.g. a forwarded email). 10 documents were redacted, and 1 document contained corrupt data (but has been nonetheless produced for completeness.”

111.  In his affidavit evidence, Yen contrasted the extensive exercise conducted with the few documents which were retrieved as a result. He said:

“Given the very expansive scope of the additional review, it is significant that so few additional documents were identified as potentially responsive and provided. This reaffirms that the original production on 28 April 2021 was appropriately conducted.”

112.  Further, in his oral testimony, Yen supplemented that of the 696 “near duplicates”, a vast majority were in fact slightly different versions of documents previously produced. He gave an example that one email might be retrieved from two sources – from the server and from an email inbox. Two versions might be generated as a result, with the only difference being the time appearing in the email. His understanding was that the email retrieved from the server might show UK time whereas the same email retrieved from the email inbox might show HK time. For the December production, Yen also mentioned in cross-examination that some of them might involve emails between secretaries about booking of conference rooms, which he did not consider to be required to be returned.

113.  On the other hand, the plaintiff criticises the defendants for downplaying the significance of the documents retrieved in the December production.

114.  During the trial, the plaintiff compiled a bundle containing 57 emails selected from the 330 “newly produced documents”. They concerned tax matters, CCB matters, investigation documents, PRC legal matters etc. It is the plaintiff’s contention that it is self-evident that the contents go beyond emails between secretaries.

115.  Separately, after the close of evidence, as directed, the parties jointly submitted a bundle of documents, classifying the documents handed over in the December production into broad categories and including examples under each category. The purpose of the joint bundle was to give the court a more concrete idea of the contents of the documents so that it could (1) verify whether Yen’s oral testimony was accurate, and (2) see for itself how similar these documents were to those produced in the 2018 production and the April production.

116.  On the one hand, the defendants point out that it is now agreed that, of the 1,026 documents, 635 either had been “wholly provided” before the December production or were identical to documents produced before save for non-content difference, such as time stamps, time zone, file name or format. That is more than half of the total production. Of the remaining 391 emails, while they had some additional or different content, they were either near duplicates or otherwise inconsequential. For instance:

(1)  159 of them were emails (a) forwarding emails and documents which had been handed over in the previous productions with no additional content or with additional content such as “fyi” or “please see attached”, and (b) replying to emails which had been previously handed over where the reply was “thanks”, “ok”, “great” etc.

(2)  54 of them were emails of an administrative nature, eg room booking, scheduling, delivery, printing and record keeping.

(3)  89 of them were draft emails and documents for which a subsequent draft and/or the final issued version had been previously produced.

117.  On the other hand, the plaintiff says that the defendants are now trying to trivialise the documents. It takes the position that there were substantively new documents. The plaintiff’s written closing submissions contain a selection of emails drawn from the joint bundle to support that position. It is unnecessary to recite those emails in this judgment. I consider the most illustrative one to be an email between two Ernst & Young staff in which the sender attached a three-page document entitled “Notes on interview with ex-employees”. This was not copied to either Yen or Liu. According to the plaintiff, these interview notes are highly relevant to Ken Li’s diversion of the plaintiff’s business to companies controlled by him and, hence, the plaintiff’s case of wrongdoing against the defendants in the breach action.

118.  I am not in a position to say whether the plaintiff is correct about the significance of the interview notes. However, having looked at the contents and the length of the interview notes, I consider that the email and its attachment cannot quite possibly be described (as the defendants have done) as “near duplicates” or otherwise inconsequential.

119.  Furthermore, the recipient of the email was a fee earner called Choong Sze Hua. She was one of the 36 former employees. In cross-examination, Yen accepted that, apart from him and Liu, Choong can be said to be the key member in the plaintiff’s liquidation team.

120.  Hence, the plaintiff says that the very fact of the December production is indisputable proof that the defendants were in breach of the production order.

Yen’s evidence

121.  In cross-examination, the issue of why the defendants did not cause a search of the Lotus Notes backup emails of the 36 former employees in the April production was explored. Yen revealed for the first time that at that time, he was aware of the need to search such backup and had specifically requested the in-house legal team to do so but was informed that the backup of the former employees could not be retrieved.

122.  Here is the relevant exchange:

“閻先生：呢件事我話佢之前搵到嗰6個，因為我之前2021年5月份嗰個誓章嗰度都有提到，我頭先亦都解釋過，喺呢個2020年10月到2021 年4月嘅期間，我唔記得係幾時嘞，咁佢哋係話畀我聽搵到嗰6個嘅backup嘅，當時我係有問點解唔搵其他，佢哋係話冇嘅。

黃律師：佢哋話係冇，哦，我明白。即係你話當時你做嗰6個嘅時候，佢話畀你聽係有backup，咁你就問佢點解--你如果有backup嘅話，點解唔做其他人嘅時候，佢哋話畀你就冇backup？

閻先生： 係。

黃律師：「佢哋」係邊個？

閻先生：法務部。

黃律師：法務部，法務部Steven Huen？

閻先生：有可能，當時佢哋主要處理呢個個案，但係可能佢有其他同事有間唔中幫手，咁我唔記得。

…

閻先生：我只能夠記得佢哋係講話搵唔到，咁佢哋係搵到6個，我好肯定我有問過，因為我都好驚訝。” (underline added)

123.  Yen was then referred to JSCC’s letter dated 25 June 2021, in which one of the plaintiff’s major complaints was the failure to search the Lotus Notes backup emails of the 36 former employees.

“徐法官：唔係，我想問一問你，你睇完呢封信，因為你已經驚訝咗㗎喇嘛，之前，即係你話搵唔到36個舊員工，你已經好驚訝㗎喇嘛。咁到你睇完呢封信，其實就冇驚訝，係咪？因為同你諗嘅嘢一樣吖嘛，係咪呀？跟住就你做啲咩嘢？就住呢一個指控。

閻先生： 就住呢個指控咪等我個法務部同我嘅律師去整一封回應，整一封回應，個回應就寫出話我哋搵到有36個嘅backup，嗰陣時我就真係好驚訝嘞。

黃律師： 但係閻先生，你話喺收到呢封信之前，你係自己問過Steven Huen「咁其他呢6個以外嘅人嘅backup係點樣呢？」咁樣樣，咁佢就話畀你聽係冇嘅，你記得？

閻先生： 係。

黃律師： 好，而家你收到呢封信，人家提出同樣嘅疑問，咁就同律師商討咁樣樣，咁就係下一步係咪法律部嘅人去--再去睇呢個問題呢？點解佢唔返嚟話畀你聽「喂，冇呀」，點解又要話去𠳕，𠳕到，跟住返嚟又話畀你聽「啊，有呀」，跟住你嘅回應係點？

閻先生： 我嘅回應係「咁要快啲整晒佢，快啲去交」，同佢哋嘅提供嘅意見係一樣。

黃律師： 你有冇懷疑點解Steven Huen「你話之前咁重要嘅問題，冇，而家原告一提出，正式提出，你去睇就話有，同埋唔單只有咁簡單，係36個都有？」

閻先生： 我嘅第一個反應，當時我係覺得係咪電腦部嘅人唔夠盡力呢？電腦部嘅人，但係我又唔係可以直接去同佢哋聯繫嘅，我要透過法務部嘅，呢個係我當時覺得--即係我係--電腦部係咪玩我呢？當時我嘅...

黃律師： 電腦部係咪玩你？Okay。咁你有冇透過法務部去了解電腦部係咪玩你，抑或係有啲咩嘢嘅即係無心之失？

閻先生： 冇。

黃律師： 你冇去追究？

閻先生： 冇。”

124.  In cross-examination, Yen accepted that the defendants should have caused a search of the Lotus Notes backup emails of the 36 former employees in the April production, but he insisted that he had asked but had been told they could not be retrieved.

“黃律師：你係咪覺得其實係都係應該去睇㗎？合理嚟講，正如你自己話要完全履行呢一個嘅命令嘅話，你係絕對有理由去𠳕番呢啲離職同事嘅backup嘅資料㗎？應該要做㗎？

閻先生： 呢個我係一開頭係希望佢哋做到㗎嘛，咁佢哋話冇吖嘛，開頭。

黃律師： 唔係，你聽我講先，應該要做，應該要做嘅，係咪？

閻先生： 同意。” (underline added)

125.  In the trial, Huen was immediately called after Yen’s testimony. He confirmed that he was the only person in the in-house legal team handling the production. Contrary to Yen’s testimony, Huen said:

(1)  In the lead-up to the April production, Yen had not asked him or enquired with him about the Lotus Notes backup emails of the former employees.

(2)  The backup of the former employees had not even been considered at the time, as the focus then had been the six existing employees.

126.  I reproduce Huen’s evidence below:

“徐法官：所以唔係好清楚究竟2021年4月，你知唔知道已離職嘅員工有Lotus Note backup？

禤先生： 我當時冇研究呢件事，我話當時focus喺6個員工嘅電腦，跟住IT嘅同事告訴畀我聽，可能有一啲Lotus Note嘅資料咁樣。我當時就話，當然嗰啲要攞出嚟，因為係potentially relevant，嗰時嘅focus就喺嗰6個員工上，就冇考慮過離職員工嘅問題。

…

黃律師： … 我想問一問你，當時閻先生有冇問過你本人，如果6個在職同事有Lotus Note backup，嗰離職嘅同事Lotus Note backup係怎樣？佢有冇問過你？

禤先生： 我冇印象。

黃律師： 你冇印象。仲有佢告訴你聽，佢告訴我哋聽，法務部嘅同事回應佢，就話嗰啲離職嘅同事係冇Lotus Note backup。你本人有冇咁樣告訴過佢？

禤先生： 冇。

黃律師： 除咗你本人之外，有冇另一個法務部嘅同事會同David Yen有咁樣嘅溝通，據你理解，這方面嘅溝通？

禤先生： 應該唔會有。

黃律師： 唔會有？

禤先生： 應該唔會有。” (underline added)

Was the December production still not sufficient?

127.  It is the plaintiff’s contention that the methodology for the December production was still inadequate.

128.  First, even with the 112 additional keywords, the keyword search exercise was still fundamentally under-inclusive. This is self-evident as, for instance, the word “Ken” was not included as a keyword.

129.  Second, in respect of the steps taken by Davis Polk (see para 107 above), only sample reviews were undertaken. The exclusionary search terms were not disclosed to the plaintiff. In the end, only a small fraction of the documents were manually reviewed by Davis Polk. It is inevitable that such exercise would not identify all the Schedule 1 documents.

130.  Third, as regards the six existing employees whose laptop computers had not been imaged in the April production, the defendants should have caused their computers to be searched as they had entered time. In fact, it is the defendants’ own evidence that at least one of them had recorded time of up to 31.5 hours.

THE 2023 PRODUCTION

131.  On 28 July 2023, the defendants made the 2023 production. Four A4 boxes containing 541 emails were handed over.

132.  This round of production was prompted by the plaintiff’s complaint, made in Seline Li’s 2^nd affirmation filed in April 2022. She said that there were overlapping emails between those handed over in the 2018 production and those produced in 2021, and on a comparison, some of the ones produced in 2021 were in incomplete or corrupted form whereas the same emails were produced in complete or uncorrupted form in 2018. The defendants instructed Ernst & Young’s forensics team to investigate the causes of the discrepancies, who managed to retrieve some of the emails in uncorrupted form from the Microsoft Exchange server located in Mainland China.

133.  In this section, I shall set out:

(1)  the defendants’ methodology for the 2023 production;

(2)  the result of the exercise;

(3)  Yen’s evidence on why the Microsoft Exchange server was not searched for the April production; and

(4)  the plaintiff’s contention that the 2023 production was still inadequate.

The methodology

134.  Based on the advice of the forensics team, it is the understanding of the defendants that:

(1)  Ernst & Young maintains a Microsoft Exchange server in Mainland China, which communicates with the laptop computers of the staff for the purpose of receiving and sending emails. When Microsoft Outlook is launched on a computer, the computer connects with the server and downloads new emails automatically.

(2)  When Microsoft Outlook is used to send emails, they are relayed through the server. If an email is deleted on the laptop, it is also deleted on the server, keeping them synchronised. In theory, emails on the server and those on the laptop should be identical.

(3)  There is a laptop storage limit. If the capacity on the laptop hard drive is exceeded, this may impair the process of the server downloading email data from the server to the laptop. Incomplete downloading of emails may also lead to corrupted versions of emails being stored locally on the laptops.

135.  After the forensics team found out that there might be discrepancies between the data stored locally on the laptops and that on the server, they proceeded to retrieve the data from the server.

136.  According to the defendants, the process was time-consuming because the server located in the Mainland. Yen explained:

“It had to be extracted in the PRC and then, given the importance of laws and regulations limiting and controlling the export of data from the PRC, work had to be undertaken in the PRC to apply keywords and ensure that only emails relating to Luen Tat were transferred from the PRC to Hong Kong.”

137.  In the end, 748,000 documents were extracted from the server. Keywords were applied and the resulting 72,000 documents were de-duplicated against the emails previously produced. 11,000 responsive emails were identified through the process. A manual review by Davis Polk of each of these 11,000 emails identified 938 emails, which were then manually compared against the documents previously produced. This eventually resulted in the return of 541 emails in the 2023 production.

The result

138.  The defendants say that many of the 541 emails are not substantively new emails but contain minor variances.

(1)  Some of them involve internal email conversations within Ernst & Young where a draft email response was prepared for review by senior members in the team. But the final form of the email sent externally has been previously handed over.

(2)  Some of them concern email chain conversations which have been previously handed over but contain new emails sent later in time with non-substantive content such as “for your reference”, “agreed”, “for your further handling” or “ok”.

(3)  Some involve circulation of draft documents. Subsequent drafts and/or the final version has already been produced.

(4)  Some emails attach scans of documents sent from photocopying machines, with no content in the emails.

139.  On the other hand, the plaintiff criticises the defendants for downplaying the significance of the 2023 production. The plaintiff says that the 541 emails contain substantive and significant contents which are never produced before and which are relevant to the plaintiff’s case of misconduct against the defendants. According to the plaintiff, many of the emails provide compelling evidence of the defendants’ wrongful conduct, in particular in relation to their biased stance in favour of Ken Li and even collusion between them.

140.  The plaintiff’s written submissions contain a selection of emails drawn from the 541 emails to support that position. The emails sent in December 2015 or shortly afterwards are specifically highlighted as that was when judgment was handed down in the father and son litigation. The plaintiff says that the emails show that even after the court ruled against Ken Li, the defendants were still positively assisting him by feeding him with documents, even litigation and strategic advice. While the contents of some of the emails may be brief (eg “ok”), when read in context, they confirmed the specific action of the defendants taken at specific times. They will therefore be highly probative of the plaintiff’s case in the breach action. The plaintiff calls these emails “implicating” emails.

141.  I would make a similar comment to the one made above. I am not in a position to determine whether the plaintiff is correct about the significance of the new emails or whether they are indeed “implicating” emails. What I accept, however, is that some of them can properly be regarded as emails with new contents which have not been produced before.

Yen’s evidence

142.  As to why the Microsoft Exchange server was not searched in the April production, the defendants’ position is this.

143.  First, as to the knowledge of the forensics team at the time, they believed that the server would fully synchronise with the individual laptops (as it was always intended to do). In fact, the forensics team still cannot explain why they were in fact not fully synchronised.

144.  Second, as for the knowledge of Yen at the time, he said that he was not aware of any difference between the data on the server and on the laptop computers. He explained:

“I was not aware at the time of my prior evidence that there was any divergence between Exchange server and local laptop data such that the locally recovered emails might not represent the totality of emails. Instead, I understood that the Microsoft Outlook email production was complete based on what was available for each custodian.”

145.  At that time, he had asked the legal team if the corrupted emails could be restored. The response was that they would make every effort to recover the originals, though it was acknowledged that some files were beyond recovery.

146.  I reproduce his evidence in cross-examination:

“閻先生： 我有問過法務部corrupt嘅內容有冇辦法解救，可唔可以救呢啲文件案？最後佢哋有能力救嘅就救咗，冇能力救嘅就救唔到。”

“閻先生：我有要求過可唔可以去有啲補救嘅動作，就係將嗰啲文件由corrupt都可以，可唔可以救回嗰啲文件案？我有作出過要求，如果佢哋做得到，應該係做咗嘅。”

147.  In his evidence, Yen stressed that he was not an IT expert and he could only rely on the expertise of Ernst & Young’s IT and forensics teams to conduct the search.

148.  In response to this, the plaintiff says that the theory of incomplete downloading is completely incredible and contrary to common sense. The reason is that many of the emails involved multiple recipients, and it would therefore require each and every one of these recipients to suffer from storage shortage on their laptop computers such that the email could not be retrieved from any of their laptops.

149.  In fact, the plaintiff seems to go further in their criticism and make a positive allegation that the defendants were withholding the “implicating” emails in the April production. For instance, it points to a chain of emails dated 16 January 2015 to which the only correspondents were Liu and Ken Li. It shows, the plaintiff contends, that Liu was improperly giving advice to Ken Li. These emails therefore should have been found in the laptop computer of Liu and could have been handed over in the April production. But, inexplicably, they were not. The plaintiff asks – were they deliberately excluded in the April production? If not and if they truly could not be found on the laptop of Liu, the compelling inference is that these emails had been deleted from the laptop.

150.  This was put to Liu in cross-examination and was denied by him.

“黃律師：好嘞，除咗個technical issue，另一個如果我睇嘅話，你可以唔同意嘅，一個好自然嘅結論就喺2021年4月28號交付文件之前，呢兩版嘅文件唔知道點解就喺電腦上面係消失咗或者被刪除，你同唔同意呢個係另外一個自然地，好容易令人覺得嘅一個結論呢？

廖先生： 我唔同意。

黃律師： 好，譬如我當呢個話「刪除」呢個可能性先喇，你就話技術性問題，刪除，我提出刪除嘅理由，除咗技術性問題同埋呢個刪除嘅情況之外，你可唔可以諗到有第三個理由？點解呢兩版嘅電郵冇出現？

廖先生： 我唔係expert，所以我唔會諗到有問題。但係個問題係我已經退咗休四年，當個possession order出嚟喺我退咗休之後，我只係想平靜咁樣係退休，唔想再面對沒完沒了嘅訴訟，我根本冇任何誘因，公司亦都唔會容許我去違反嗰個production order，咁我點樣話好似黃大狀你其中一個話可能性話我去delete電郵呢？”

Was the 2023 production still not sufficient?

151.  It is the plaintiff’s contention that the defendants still failed to hand over all the Schedule 1 documents from the Microsoft Exchange server.

152.  This is because the retrieval process, as described by the defendants themselves, was subject to further filtering process in addition to the keyword search which was previously used. It points out that the defendants did not make clear what keywords they had used in this round.

THE EVIDENCE

153.  As remarked earlier above, there are only a few factual disputes in this trial. I shall deal with the following in this section and they concern what the defendants did (or did not do) and knew (or did not know) at the time of the April production:

(1)  Did Yen ask the in-house legal team to search the Lotus Notes backup emails of the former employees? Did the defendants otherwise address their minds to such backup emails?

(2)  Did Yen know that the data on the Microsoft Exchange server and the data on the laptop computers of the fee earners were not fully synchonised? Is the defendants’ suggestion that the discrepancies were likely due to incomplete downloading owing to storage capacity of the laptop computers credible?

(3)  Did the defendants deliberately conceal the “implicating” emails (found in the 2023 production) in the April production?

154.  All three issues are relevant to the mens rea question.

The first issue

155.  I find that Yen’s allegation that in the lead-up to the April production, he was aware of the need to search the Lotus Notes backup emails of the former employees and specifically requested the in-house legal team to do so but was informed that such backup emails could not be retrieved to be incredible for the following reasons.

156.  First, this allegation was made for the first time in cross-examination. It had never been made before either in correspondence or in the affidavit evidence.

(1)  It will be recalled that in the correspondence after the April production, JSCC complained about the omission to search the backup emails, describing it as “jaw-dropping”: see the extract from the 25 June 2021 letter in para 91 above. In their subsequent replies, Davis Polk made no mention at all about the alleged efforts made by Ernst & Young to try to retrieve such backup notes for the April production.

(2)  Also, in Seline Li’s affirmation made in February 2022, she made the same complaint. But, in his reply affidavit, Yen made no mention about the alleged efforts.

(3)  It is inherently unbelievable that if such efforts had indeed been made, both Davis Polk and Yen would have omitted to mention them.

157.  Second, Yen’s new revelation was directly and unreservedly contradicted by Huen’s oral evidence. Huen has no self-interest in these committal proceedings. He was an in-house counsel at Ernst & Young but has now left the firm. He has no obvious motive to lie about this incident. I find him to be an impartial witness. His evidence that the focus at that time was the existing employees and the former employees were not considered is inherently probable.

158.  I therefore reject Yen’s evidence that he had asked the legal team to search the Lotus Notes backup emails of the former employees in the lead-up to the April production. I accept Huen’s evidence that such backup emails had not been considered at that time.

The second issue

159.  I consider that the defendants’ suggestion that the discrepancies between the data on the Microsoft Exchange server and the data on the individual laptop computers of the fee earners were likely due to incomplete downloading owing to the storage capacity of the laptop computers being exceeded to be credible. That suggestion is made by the forensics team at Ernst & Young, who should be taken to have the expertise in these matters. And it is inherently plausible. I am prepared to accept that at face value.

160.  As the matter appears to be highly technical, I find Yen’s assertion that at the time of the April production, he was not aware of any difference between the data on the server and the data on the individual laptop computers to be inherently plausible and credible. I accept his evidence as set out in paras 144 to 147 above.

The third issue

161.  As regards the third issue, Mr Maurellet submits that this point is not open to the plaintiff as it was not pleaded. I agree. This is a serious allegation and is not set out as a ground of contempt in the amended statement.

162.  In any event, the evidence before me is not sufficient to show, beyond reasonable doubt, that there was a deliberate attempt on the part of the defendants to conceal the “implicating” emails in April 2021.

163.  The evidence relied on by the plaintiff is basically that there were “implicating” emails and that some of them were not disclosed in the April production but only disclosed in the 2023 production. That is, as I see it, the extent of the plaintiff’s evidence.

164.  The defendants have now put forward an explanation as to why the 541 emails were only handed over in the 2023 production but not before, which I have found to be credible.

165.  A further counter-argument is that in the 2018 production, the defendants had already produced documents which may on their face be prejudicial to them. Why would they want to withhold other similarly prejudicial documents in the April production? Lastly, as pointed out by Mr Maurellet, the entire document production process was overseen by Ernst & Young’s in-house legal team, with support from the IT and forensics teams. Outside law firms were engaged. It seems far-fetched to suggest that these employees and external lawyers would collude with the defendants to suppress documents. Insofar as it is suggested that the defendants withheld documents by themselves, there is no evidence before me as to how they managed to do so.

STAGE 1 – CONSTRUCTION OF THE ORDERS

166.  I now address the stage 1 question. The plaintiff’s construction is that the production order requires the defendants to hand over all Schedule 1 documents. The defendants say that they are only required to conduct a reasonable search.

167.  There is no dispute as to the proper approach for interpreting a court order. A court order should be given the meaning it conveys to a reasonable person having all the background knowledge reasonably available at the time when the order was made: see, eg, Alan Chung Wah Tang and Hou Chung Man v Lee Siu Fong [2022] HKCFI 3683, para 26. In other words, in the construction exercise, proper regard must be made to the context against which the order was made.

The context

168.  In my view, there are two important contexts here.

169.  First, the basis of the production order. The order was made after a contested hearing. The reasoning contained in the production decision provides the most important context for the order.

170.  I have set out the reasoning of DHCJ Le Pichon in para 58 above. In essence, it was held that all the documents generated by the defendants in the course of the liquidation belong to the plaintiff, which have to be delivered up on the termination of the relationship between the plaintiff and the defendants. Mr Wong submits, and I agree, that in the production litigation, the plaintiff was seeking to recover its own documents from the defendants. The application was granted on that basis. Importantly, the judge explicitly rejected the defendants’ suggestion that there are documents which they are entitled to retain.

171.  Second, at the time when the production order was made, it must have been known or was indeed known that the return exercise was going to be a massive one, requiring the input of substantial manpower, time and costs. While this matter was not referred to by the judge in the production decision, it must have been reasonably obvious that the exercise was going to be a huge one as the liquidation spanned over a long period of seven years. In the stay decision, Recorder Houghton, SC expressly acknowledged that the exercise would be substantial.

172.  Against the above contexts, it is plain and clear to me that the word “all” in the production order should be given its literal meaning. “All” means all. The defendants are effectively ordered to return to the plaintiff what belongs to it. It is difficult to see why a reasonableness test should be introduced which will allow the defendants to return only some, but not all, of the plaintiff’s own documents. This interpretation would go against the legal basis of the production order. At the same time, it must have been known or was indeed known to the court that the scale of the exercise would be a large one. With this piece of information, the court nonetheless proceeded to make an order using the word “all”. It must be taken to mean that all documents are to be returned, notwithstanding that a substantial exercise would have to be carried out.

The defendants’ analogy with specific discovery orders

173.  Mr Maurellet invites the court to draw an analogy with specific discovery orders made in civil litigation. He submits that the analogy is appropriate because the language used in the production order closely mirrors that in specific discovery orders. He cites a long list of cases where the compliance of the discovery order in question requires a large-scale review exercise. It is said that in those cases, the courts have construed the orders to mean that as long as reasonable steps are taken, the orders will not be breached even if some documents are missed. The same approach, Mr Maurellet submits, should apply to the production order.

174.  It is unnecessary for me to discuss those cases. The short answer to the argument is that the context for the production order here and that for specific discovery orders are different, and hence the analogy is not a proper one. As explained above, the production order is about the return of what belongs to the plaintiff to the plaintiff. The defendants are ordered to hand over the plaintiff’s own documents.

175.  By contrast, a specific discovery order is about the disclosure of documents which are relevant to the disputes and necessary for the disposal of the case or for saving costs. A respondent in a discovery order is required to hand over documents not because those documents belong to the applicant, but because those documents are relevant and necessary. And that is why considerations of proportionality, efficiency and oppressiveness would come into play. It is not difficult to understand why in cases where a large-scale production exercise is anticipated, the court would be prepared to subject the respondent’s obligation to a reasonableness test. If it does not, the exercise may then become disproportionate, inefficient and oppressive.

The defendants’ impossibility argument

176.  Mr Maurellet mounts another argument in support of the “reasonableness” construction, which I shall refer to as “the impossibility argument”.

177.  It is submitted that if the production order is given its literal meaning, it would be impossible for the defendants to obey it, as it would be impossible for them to produce every single Schedule 1 document by the deadline of 28 April 2021. The sheer magnitude of the production exercise is clearly shown in the defendants’ evidence. There were 1.75 million emails to start with (ie those emails retrieved from the laptop computers of the six existing employees). To conduct a review of this mass volume of emails with zero error would be impossible. Mistakes are inevitable. Even with genuine efforts, some documents may be missed. To require the defendants to produce literally all Schedule 1 documents without exception is to require them to do the impossible. This would be a most unreasonable result which the court could not have intended. No reasonable person, aware of the complexities involved, would have read the production order in such an onerous and draconian manner.

178.  The impossibility argument raises a prior issue – is this an argument properly raised at stage 1? Or should the argument be dealt with at stage 2? Or even stage 3?

179.  In a committal application, it is well established that the plaintiff bears the burden to prove beyond reasonable doubt that the defendant was in breach of the order in question. In doing so, the plaintiff also bears the burden to prove that it was within the power of the defendant to comply with it: China Metal at para 68. There will be no finding of contempt if the burden is not discharged.

180.  As held by the Court of Appeal in that case, at para 75:

“If there is no reasonable prospect of establishing a case that it was within the power of the defendants to do the acts which they were required to do, contempt is not an option.”

181.  This is a stage 2 question which goes to actus reus.

182.  It is also well established that the plaintiff bears the burden to prove beyond reasonable doubt that the breach was accompanied by the requisite mens rea. In the context of a mandatory injunction, mens rea is negatived if the omission to do the act mandated by the court order is involuntary. One such instance would be where the injunction was impossible of performance. In such a situation, the omission would be regarded as unintentional: Kao, Lee & Yip at paras 41 and 48. The Court said, at para 56:

“There can be no penal liability for a failure to perform an impossible task.”

183.  This is a stage 3 question which goes to mens rea.

184.  Hence, the impossibility argument raised by Mr Maurellet may potentially be dealt with at stage 1, stage 2 or stage 3. In fact, this is reflected in counsel’s submission. He says that the plaintiff’s construction should be rejected but submits, alternatively, that if the construction is adopted, the committal application should fail for impossibility.

185.  I do not think there is any hard and fast rule for determining at which stage of a committal application an argument based on impossibility should be resolved. It must depend on the circumstances of each case.

186.  Here, for the reasons set out above, I am of the clear view that the legal basis of the production order provides the most important context for construing the order, and the essence of the order was to require the defendants to return the plaintiff’s own documents to the plaintiff, and that must mean all documents. The impossibility argument is therefore irrelevant in the construction exercise. But that does not mean that the defendants will be committed for contempt for failing to do something which is impossible (if that is proved), as the impossibility argument can be properly raised at stage 2 and/or stage 3 and, if upheld, there will be no finding of contempt for lack of either actus reus or mens rea (or both).

Summary

187.  To conclude, as regards the stage 1 question, I hold that the defendants are obliged to hand over all Schedule 1 documents under the production order. I reject the defendants’ argument that the obligation is subject to a reasonableness test.

188.  I should add, by way of footnote, that the reasonableness argument was only raised for the first time in the defendants’ opening submissions. It is apparent that before that, they had been taking the view that all Schedule 1 documents were required to be handed over “regardless of how miscellaneous and inconsequential” they are: see Hogan Lovells’ letter sent shortly after the production order was made (para 66 above).

STAGE 2 – BREACH

189.  Based on the above construction, I now address the stage 2 question concerning actus reus – were the defendants in breach of the production order and the affidavit order? I shall first deal with the question of whether it has been shown that it was within the power of the defendants to comply with the orders. If so, I shall proceed to determine whether the plaintiff has made out its case on the deficiencies in the defendants’ methodology under the seven heads of complaint.

Was it within the power of the defendants to comply?

190.  The burden is on the plaintiff to show that it was within the power of the defendants to have produced all Schedule 1 documents by 28 April 2021.

191.  The defendants say that the plaintiff has failed to demonstrate how they could guarantee the production of every single Schedule 1 document given the enormous scale of the exercise and the inevitability of human errors. In Yen’s evidence, it was also suggested that while the defendants could deploy staff within their own insolvency team to conduct the review exercise, they otherwise had to rely on Ernst & Young’s legal, forensics and IT teams to execute the process, and it was the firm who decided how much resources would be given to the exercise.  

192.  There are two aspects to the production order. First, the substantive aspect. Was it possible to hand over all Schedule 1 documents? Second, the timing aspect. Was it possible to do so by the deadline of 28 April 2021?

193.  As to the first aspect, as a matter of analysis, the production order requires a certain state of affairs to be achieved. It is for the defendants to find out the proper means or come up with a proper methodology to achieve that state of affairs.

194.  This was explained in Kao, Lee & Yip. That case concerned an order requiring the defendant (a solicitor) to maintain an account of all work which was undertaken by him in relation to any former client of the plaintiff (the defendant’s former law firm). The order there and the production order here are of a similar nature in that each of them is clear in terms of what is required of the defendant but does not specify how the defendant should go about achieving the final result. In such a case:

“Provided that the order specifies with certainty the result to be achieved it is not normally for the applicant to suggest, or for the court to prescribe, a particular method of complying with the order. As Chitty J said in Walthamstow, “it was the duty of the defendants to find out the proper means of obeying the order”.” (Kao, Lee & Yip at para 23, quoting Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees’ Union of Australia (1987) 72 ALR 415, 424)

195.  In the present case, the material question to ask, in my view, is whether it was possible for the defendants to come up with a methodology, if properly executed, would be effective in retrieving all the Schedule 1 documents.

196.  On the issue of methodology, there has been a long-standing dispute between the parties as to whether a manual “eyeball” review should be undertaken to go through the electronic documents or whether a review based on the use of keywords could be adopted.

(1)  All along, through correspondence and affidavit evidence filed in this committal application, the plaintiff has maintained that a manual review is entirely feasible and should be done, even though it could be time-consuming and very costly.

(2)  On the other hand, the defendants contend that given the enormous size of the data, a manual review is not feasible and, if done, would be beset by human errors, resulting in gaps in the production.

197.  The evidence before the court shows that there was a massive amount of electronic data which needed to be reviewed in order to retrieve the Schedule 1 documents. The data pool was simply enormous. For that reason, I think it is unrealistic to expect that a manual “eyeball” review would be effective in retrieving all the documents as the process is bound to be vitiated by human errors. I accept that the defendants were entitled to come up with an alternative methodology.

198.  In fact, the evidence before me shows, and I hold, that it was within the power of the defendants to devise a methodology which, if properly executed, could effectively retrieve all the Schedule 1 documents. (This is subject to a caveat which I will come back to shortly.)

199.  I say this because I consider that the steps taken by the defendants in the April production, the December production and the 2023 production collectively were comprehensive and capable of retrieving all the Schedule 1 documents. More specifically, I find the following:

(1)  As regards the emails not stored centrally in servers but stored in the individual inboxes of the fee earners, it was logical to start off the process by identifying these fee earners by reference to time entered on this client matter, as that was a reliable guide on who might have created documents in the liquidation.

(2)  Once the fee earners were identified, the document hold process was an effective means to ascertain whether any of them still held responsive documents. The fee earners are professionally trained and could be relied on to respond to the document preservation notice with reasonable care.

(3)  Given the enormous size of the original data pool, a search using keywords was proper.

(4)  In the end, a total of 197 (ie 85 + 112) keywords were applied. As is evident from the lists annexed to this judgment, the words chosen appeared to be extensive, comprehensive and contained different permutations of wordings. It is true that first names were not chosen as keywords (eg “Ken”), but I consider that their inclusion could be counter-productive as they were capable of generating numerous false positives.

(5)  When faced with what remained to be a large data pool, sample review was an effective tool to screen out “false hits”.

(6)  It is important to bear in mind that the defendants had a responsibility not to hand over documents which included information of other clients. Hence, it was proper to conduct exclusionary searches.

(7)  As soon as the responsive pool was reduced to a manageable size, manual review was undertaken by either Yen and his team or Davis Polk. That said, the documents subject to manual review were still in the range of tens of thousands.

(8)  In the end, not only the emails stored locally on the laptop computers were retrieved, those still available on the Microsoft Exchange server were also downloaded and searched.

200.  It is in fact the defendants’ own case that latest by the time the 2023 production was made, all the Schedule 1 documents were handed over to the plaintiff.

201.  It is true that the plaintiff bears the burden of showing that it was within the power of the defendants to hand over all Schedule 1 documents. However, the plaintiff has no personal knowledge of how the documents were created and stored by the defendants. It is clear from Kao, Lee & Yip that it was for the defendants to find an appropriate means to obey the production order. Here, the defendants’ own evidence demonstrates that they had (in the end) adopted and executed a proper methodology which, in my view, was capable of retrieving all Schedule 1 documents. The plaintiff’s burden is therefore discharged.

202.  Earlier, I refer to a caveat and it is this. The defendants argue that even with a properly devised methodology which is executed up to a reasonable standard, it is still impossible to guarantee that every single document is retrieved as there are bound to be mistakes and gaps in a large-scale production like the present one. I think the answer to this is that if that happens, as will be seen below, there may be no contempt found as any such omission may fall within the “accidental and unintentional” exception at stage 3 (the mens rea stage). In any event, as a matter of common sense, notwithstanding the potential gaps in the production, it is still correct to conclude, as demonstrated by the evidence, that it was within the power for the defendants to hand over all Schedule 1 documents.

203.  I now turn to the timing aspect. I am satisfied that it was possible for the defendants to comply with the production order by the deadline of 28 April 2021. It is not necessary to make any finding as to the resources which the defendants could command for the production exercise. The objective fact is that they in fact had substantial assistance and support from Ernst & Young. Top-tier international law firms were engaged for the exercise. I have not been provided with precise figures of the total number of manhours put in and the total legal costs charged by the external law firms in the three rounds of production. But it is plain that Ernst & Young had devoted vast resources to the exercise. Insofar as it is now suggested that it was impossible to comply with the production order for want of resources, that is not tenable as being contrary to the objective fact as disclosed by the defendants’ own evidence.

204.  As to timing, the short point here is that in the stay application, the defendants themselves asked for 56 days if their stay was refused, and it was remarked by the recorder that the defendants should have started the process since October 2020. This shows that had the defendants attempted to take all the steps which were taken in the three rounds of production in one go before 28 April 2021, it should have been within their power to hand over all Schedule 1 documents by the deadline.

205.  I now turn to the seven heads of complaint raised by the plaintiff.

The keyword search issue

206.  Under the keyword search issue, the plaintiff says that the use of the keyword search approach, as opposed to a manual review, is in principle objectionable as it would screen out responsive documents. I do not agree with this contention. I have already held above that a keyword search approach, if properly devised, should be capable of capturing all responsive documents.

207.  Next, the plaintiff contends that the use of the 85 keywords in the April production was inherently defective as they were chosen with a view to identifying only the documents relevant to the defendants’ wrongdoing as alleged by the plaintiff. See the plaintiff’s objection set out in the correspondence, in particular JSCC’s letter dated 25 June 2021 (para 93(1) above).

208.  Mr Maurellet submits, and I agree, that it is not open to the plaintiff to make this contention because it was not “pleaded”. The plaintiff’s contention is a positive and independent case which the defendants need to meet at trial. It should have been “pleaded” as a ground of contempt with proper particulars. That was not done. It would not be fair to allow the plaintiff to run this point in the trial.

209.  The plaintiff further contends that the 85 keywords were self-evidently under-inclusive. I agree with that contention. The 85 keywords did not contain any Chinese character, did not include a number of legal proceedings relevant to the plaintiff’s liquidation, and did not include some of the relevant individuals, such as Ken Li’s former solicitors. The insufficiency of the 85 keywords is also apparent when compared with the 112 additional keywords: see Annex 2 and Annex 3. I also agree with Mr Wong’s submission that the very fact that 112 additional keywords were subsequently applied resulting in the production of new documents is indisputable proof that the initial list of 85 keywords was inadequate.

210.  I therefore hold that by making use of merely the 85 keywords in the April production, the defendants were in breach of the production order in that the Schedule 1 documents not captured by those keywords were missed out.

The Lotus Notes backup issue

211.  Under the Lotus Notes backup issue, the plaintiff says that the defendants should have searched the Lotus Notes backup emails of the 36 former employees for the April production but did not do so. This resulted in the failure to capture those Schedule 1 documents which were stored in these backup emails but not elsewhere.

212.  This is a valid complaint. In fact, in cross-examination, Yen accepted that such a search should have been done. As I remarked at the trial, it was an obvious hole in the production exercise. The search was subsequently done in the December production. I accept the plaintiff’s contention that there were new documents disclosed in that round (for which, see paras 114, 117 to 119 above).

213.  I therefore hold that by omitting to search the Lotus Notes backup emails of the 36 former employees in the April production, the defendants were in breach of the production order in that those emails found only in such backup data were missed out from the April production.

The 15 custodians issues

214.  Under the 15 custodians issues, the plaintiff says that the document hold process was deficient as it was solely dependent on the custodians’ own recollection and confirmation as to whether they still retained Schedule 1 documents. As the 15 existing employees had entered time on the file, the defendants should have caused a search on the laptop computers of all of them and should not have confined the search to the six who responded positively to the document preservation notice.

215.  I have held above that the document hold process was in principle an effective means to identify responsive documents.

216.  However, according to Huen’s evidence, in the December production, the search on the laptops of two additional existing employees (who each recorded more than 50 hours of time on the file) yielded a discovery of about 90 documents which were considered Schedule 1 documents.

217.  For that reason, I accept that the defendants were in breach of the production order by omitting to produce those 90 documents in the April production. However, I should add at the same time that the 90 documents comprised only a very small number when compared with the 49 boxes of documents which were delivered in the April production.

The Microsoft Exchange server issue

218.  Under the Microsoft Exchange server issue, the plaintiff complains that the defendants failed to search the server with respect to the emails of the existing employees for the April production. In the end, the server was searched in the 2023 production which led to the production of 541 emails, some of which contain new contents which had not been previously disclosed (for which, see paras 140 and 141 above).

219.  I agree that the 2023 production is indisputable proof that the defendants failed to produce all Schedule 1 documents. I hold that the defendants were in breach of the production order in that the documents found only on the Microsoft Exchange server were missed out from the April production.

The corrupted documents issue

220.  The corrupted documents issue is in essence the same as the Microsoft Exchange server issue. This complaint is therefore made out.

The Category C documents issue

221.  Under the Category C documents issue, the plaintiff contends that the defendants failed to hand over emails and documents of the support and administrative staff in the April production.

222.  In the December production, it is common ground (as shown in the joint table submitted by the parties) that 54 documents were handed over which are described as emails “of an administrative nature (e.g. room booking, scheduling, delivery, printing and record keeping matters)”. The plaintiff submits, and I agree, that this is indisputable proof that the April production was inadequate in that these documents were missing.

223.  I therefore hold that the defendants were in breach of the production order by failing to hand over these Category C documents in the April production.

The missing POD summaries issue

224.  Under the missing POD summaries issue, the plaintiff contends that the defendants failed to hand over the adjudication summaries relating to five proofs of debts, which are numbered 45, 46, 49, 50 and 51, and, remarkably, these proofs were submitted by Ken Li and his associates, which coincided with the “spurious proofs of debts” referred to in the removal decision and criticised by the judge as showing the defendants’ bias in favour of Ken Li: see para 51 above.

225.  The plaintiff refers to the fact that in the course of the liquidation, the defendants had devised standard form adjudication summaries of the plaintiff’s proofs of debts. The summaries would record the details of, among other things, the supporting documents, the actions taken by the defendants, their analysis of the evidence, and the internal recommendation on what action should be taken. The plaintiff points to the fact that the adjudication summaries existed for all other proofs of debts, including for a claim of as little as $4,211.50. Hence, the adjudication summaries for the five proofs of debts must have existed.

226.  The defendants’ response is that the alleged summaries did not exist. In his affidavit evidence, Yen explained that preparation of adjudication summaries was not a requirement, both as a matter of law and as a matter of practice. As the five proofs of debts were more complicated and controversial in nature, the reasons and records for the adjudication were addressed in correspondence rather than in standalone adjudication summaries.

227.  In cross-examination, Yen added that they had searched all the servers but nothing was found and that should show that no such adjudication summaries had been prepared in the first place. He denied that these documents were concealed by the defendants.

228.  This ground of contempt turns on the factual issue of whether the adjudication summaries for the five proofs of debts existed in the first place. If they did, then there was a breach of the production order.

229.  In my judgment, the evidence before me is not sufficient to support a finding on the criminal standard that the adjudication summaries existed. The only evidence in support is the fact that similar summaries had been prepared for all other proofs of debts and the only ones missing remarkably related to those proofs submitted by Ken Li and his camp. It is true that one may legitimately argue that the inherent likelihood is that adjudication summaries had been prepared for all proofs of debts, and that there was prima facie a motive on the part of the defendants to hide them because the documents might be prejudicial to them in the breach action. But that is really the extent of the plaintiff’s evidence and argument.

230.  On the other hand, the objective fact is that by the time of the April production, the defendants had already produced other potentially prejudicial documents. This would seem to undermine the force of the motive point. The further objective fact is that the April production was overseen by Ernst & Young’s in-house teams, with the assistance of outside lawyers. This would go to undermine the likelihood that the defendants could have concealed the documents.

231.  I therefore find that the plaintiff has failed to show that the adjudication summaries for the five proofs of debts existed in the first place. This ground of contempt is not made out.

Summary

232.  In summary, as regard the stage 2 question, I find that the defendants were in breach of the production order. The plaintiff has successfully made out the breaches under all the heads of complaint save for the missing POD summaries issue.

233.  As the defendants failed to hand over all the Schedule 1 documents by 28 April 2021, the confirmatory affidavits, which were to the contrary effect, were false and the defendants were therefore in breach of the affidavit order.

STAGE 3 – MENS REA

234.  At stage 3, the question is whether the breaches, as found, were accompanied by the requisite state of mind to establish contempt.

235.  There are fundamental differences between the parties on the legal question of what qualifies as the requisite state of mind in the context of an order to produce documents.

236.  On the law, I am in general agreement with the submissions made by Mr Wong. The guiding principles are to be found in Kao, Lee & Yip. In addition, I consider that the Hong Kong decision in Lo Po Wai, Harry v Wong Yee Chuk [2024] HKCFI 724 and the English decision in Bird v Hadkinson [1999] BPIR 653 provide guidance on the issue. I reject the formulation put forward by Mr Maurellet on the requisite mental state. His reliance on the Court of Appeal decision in Ip Pui Lam Arthur and Ip Pui Sum v Alan Chung Wah Tang and Alison Wong Lee Fung Ying CACV 214/2016, 16 February 2017 and the first instance decision in Alan Tang is, in my view, misplaced.

Legal principles

237.  In civil contempt, the mental element is proved if it is shown that the defendant knew the facts which are said to make his act or omission a breach of the court order in question. It is not necessary to prove that he appreciated that it did breach the order. It is not necessary to show that there was a direct intention to disobey the order or otherwise to interfere with the administration of justice: Kao, Lee & Yip at paras 43 to 45.

238.  The rationale was explained by Lord Wilberforce in Heatons Transport (St Helens) Ltd v Transport and General Workers’ Union [1973] AC 15 at 109E, quoted in Kao, Lee & Yip at para 44:

“because the party in whose favour an order has been made is entitled to have it enforced, and also the effective administration of justice normally requires some penalty for disobedience to an order of a court if the disobedience is more than casual or accidental and unintentional.”

239.  The “casual or accidental and unintentional” exception exists because no injustice is done when the breach of the court order is occasioned by such a cause: Kao, Lee & Yip at para 53. On a general level, there is no good reason, whether as a matter of principle, policy or justice and fairness, for punishing a defendant for breaching an order either casually or accidentally and unintentionally. It has been said that it would be an abuse of language to say that a man who honestly tried to obey an order but by mistake was in fact in breach of it, is showing “contempt”: Adam Phones Ltd v Goldschmidt [1999] 4 All ER 486 at 494.

240.  Whether the “casual or accidental and intentional” exception applies must depend on the facts of each case. Adam Phones is often cited as an example which falls within the “unintentional” exception. In Hong Kong, ZQA v SCC [2021] 3 HKC 458, [2021] HKCA 194 is a recent decision of the Court of Appeal in which the “unintentional” exception was upheld: para 5.22. While Mr Wong and Mr Maurellet have each discussed this case at some length in their submissions, I do not find it necessary to do so here, as the facts there are very different.

241.  Here, we are concerned with a mandatory order requiring a defendant to achieve a certain state of affairs. As remarked above, it is for the defendant to find out the proper means or devise the proper methodology to achieve the result. If the methodology come up with by the defendant was ineffective in delivering the result mandated by the order, that would be a breach. Actus reus would be established. On mens rea, two material questions need to be answered:

(1)  What would be the requisite state of mind which must accompany the breach in order to find contempt?

(2)  May the defendant avail himself of the “accidental and unintentional” exception if he genuinely and in good faith believed that his methodology was good enough to comply with the order (when it was not)?

242.  As regards the first question, the answer, again, is to be found in Kao, Lee & Yip. If the defendant consciously and voluntarily adopted the methodology, mens rea is established.

243.  I recite the ruling in Kao, Lee & Yip at para 54:

“In the present case, the mens rea that must be proved to show Mr Koo’s liability for breach of the first Order is his conscious and voluntary decision not to maintain an account of the work actually undertaken by KP for former clients of KLY but to keep the files and ledgers and the records kept in the Konto and PPOS programs in the hope that that would suffice if he were ever ordered to produce an account as ordered by Mayo J. The hope was misconceived. The conclusion which Mr Koo and his then solicitors reached in January 1994 that “the proper and diligent preparation of the books and the financial records of [KP] would be proper performance of the [First] order” was erroneous since the books and financial records were not designed to “maintain an account of all work … in relation to any former client of [KLY] until trial”.” (underline added)

244.  As regards the second question, I think the answer is that there is a prerequisite which the defendant needs to satisfy before he can invoke the “accidental and unintentional” exception. Mr Wong submits that the defendant needs to demonstrate that he had taken all the steps which were reasonably required of him in the circumstances when devising his methodology and he had executed it with reasonable care. It is only after that is shown that he should be allowed to argue that he should not be committed for contempt because he had in good faith believed that what he had done was good enough to obey the order (when it was not).

245.  I agree with that submission. I think it is correct as a matter of principle and is supported by the authorities. (I should however make it clear that where the prerequisite is met, whether the exception can be invoked still turns on the specific facts of the case.)

246.  The rationale of the accidental exception, as we have seen above, is that, conceptually speaking, it is just not right to commit a person to prison for breaching an order accidentally and unintentionally. However, there will be cases in which the defendant genuinely thought he was obeying an order but his efforts in complying in fact fell short of what a reasonable person would do in his circumstances. In these cases, contempt should be found as otherwise the usefulness of the committal process as a tool to enforce orders and uphold the authority of the court would be much diminished. This is therefore a good policy reason for imposing a prerequisite on a defendant who wishes to rely on the exception.

247.  On authorities, I find support in Kao, Lee & Yip, Bird v Hadkinson and Lo Po Wai.

248.  The above proposition is consistent with what the Court of Final Appeal said in Kao, Lee & Yip. It was held, at para 55, that the plea that the defendant “did his best” did not lead to the conclusion that the breach was “casual or unintentional or accidental”. It was further held, at para 63, that a mistake about the legitimacy of action to comply with a court order is no excuse for non-compliance. If it were otherwise, obedience to court orders would be problematic as it would be dependent on the correctness of legal advice about what the defendant might lawfully do to obey it. In my view, what was said there supports the proposition that whether the exception applies does not turn solely on the subjective state of mind of the defendant, and that there is an objective standard which he needs to meet.

249.  Next, Bird v Hadkinson. This case concerned a disclosure order made in aid of a Mareva injunction. The respondent there was ordered to answer questions about the movement of some funds. Neuberger J (as he then was) addressed the question of whether a disclosure order requiring the respondent to give information would be satisfied by merely an honest answer as to belief or whether it would require an accurate answer: 657E-F. Even though the content of the disclosure order there is different from the production order before me, one can immediately see the parallel between the two scenarios. And I think the answer and reasoning given by his Lordship applies equally to the present case.

250.  The answer was that if the respondent gives an inaccurate answer, that is not in compliance with the order. However, if the inaccurate answer is given in good faith, and is given after investigating the matter in a way which is reasonable in all the circumstances, either there is contempt which is of a most technical nature or there is no contempt:

“or if everything reasonable was indeed done, there may be no contempt. It may very well be that, although the order strictly requires an accurate answer, the court would regard a person who takes all reasonable steps to obtain the information and gives an honest, but inaccurate, answer, as having complied with his obligation: he has done all that could reasonably be expected of him. But if the respondent has not taken reasonable steps to investigate the truth or otherwise of the answer he gives, then I consider that there is a contempt if the answer is not accurate.” (657H-658A)

251.  The last authority is Lo Po Wai, a case relied on by Mr Wong. That case concerned an order that the plaintiff be allowed to inspect categories of documents specified in the order. It was held that two documents, which were attachments to an email and referred to in the decision as “the DY-2018 and DY-2019 Reports”, were within the scope of the order and the defendant had failed to disclose them. The defendant might not have actual contemporaneous knowledge of their existence. Notwithstanding that, the “accidental and unintentional” exception did not apply. This was because it had been within his power to discover the documents by checking all the emails “carefully and diligently” but he had failed to do so: paras 71(h) to (i).

252.  K Yeung J ruled that the failure to “carefully and diligently” check the emails amounted to the requisite state of mind to find contempt, and the exception did not apply, at para 71(k):

“I have recorded above that Mr Yau in the course of his oral closing acknowledged on D’s behalf his failure, in relation to the DY-2018 and DY-2019 Reports, to make enquiry to find out or alternatively make sufficient efforts to look for any reports which fall within definition of “auditor’s report” (i.e. the 3^rd Failure). On the facts before me, that constitute culpable mental element, well beyond what may otherwise be casual, accidental or unintentional conduct.”

253.  As for the defendants, it is submitted by Mr Maurellet that in the context of a document production order, the requisite mental element is an intention not to produce the document. He relies on Ip Pui Lam (at para 4.2) and Alan Tang (at para 25.4) in support. In both cases, it was stated that the burden is on the plaintiff to show beyond reasonable doubt that:

“the defendants intended not to produce them”

254.  Mr Maurellet then submits that where there are gaps in the production, when determining mens rea, the correct question to ask is whether those gaps were consciously excluded as opposed to merely being accidental, taking into account what was within the defendant’s knowledge and power. Applying that to the present case, the pertinent question is whether the defendants knew of and intended the omissions rendering the methodology in breach of the production order. For instance, under the keyword search issue, the question is – was there a conscious decision to exclude keywords which the defendants knew would identify additional documents? If not, then mens rea is not established.

255.  I do not think that Mr Maurellet’s formulation represents the correct test. First, his formulation cannot be found in Ip Pui Lam and Alan Tang. The two authorities simply contain the one-line statement without any elaboration. Second, as a matter of principle, his formulation plainly goes contrary to Kao, Lee & Yip. It is plain to me that the one-line statement was meant by the courts in the two decisions to be applied in accordance with the general principles explained in Kao, Lee & Yip.

256.  I should, however, add that in addition to the above formulation, Mr Maurellet also makes the submission that the defendants had taken all reasonable steps within their knowledge and control to comply with the orders. They formulated an extensive methodology developed with input from legal, forensics and IT exerts. After applying the keywords to the original data pool, they deployed a large team to manually review tens of thousands of documents. Any gaps in the April production should fall squarely within the accidental exception.

257.  This submission is, in principle, in line with Mr Wong’s submission which I have accepted above, namely that the defendants should demonstrate that they had taken all reasonable steps to comply as a prerequisite before invoking the accidental exception.

Application to the facts

258.  In my judgment, mens rea is established for the breaches under:

(1)  the keyword search issue;

(2)  the Lotus Notes backup issue; and

(3)  the Category C documents issue.

259.  This is because in the April production, the defendants consciously and voluntarily adopted the methodology which made use of the 85 original keywords only, and focused on the search of the emails of the six existing employees, without addressing their minds to the 36 former employees. The “accidental and unintentional” exception does not apply because it was unreasonable for the defendants to confine the search to the 85 keywords and not to consider searching the emails of the former employees. (Yen himself accepted at the trial that the former employees should have been considered.) In the circumstances, they should not be allowed to take advantage of the “accidental and unintentional” exception even though it appears to be the case that they honestly considered that they had done enough to comply with the order at the time.[1]

260.  On the other hand, I am not satisfied that mens rea is established for breaches under:

(1)  the 15 custodians issue;

(2)  the Microsoft Exchange server issue; and

(3)  the corrupted documents issue.

261.  As regards (1), it was a conscious and voluntary decision on the part of the defendants not to search the laptop computers of the nine existing employees who gave a negative response to the document preservation notice. As explained above, I consider that the document hold process was an effective means to identify fee earners who were still in possession of responsive documents. It was reasonable for the defendants to rely on the reply of the nine existing employees and, based on that, not to search their laptop computers in the April production. It turns out that two of them in fact did hold a very small number of responsive documents. There was therefore a breach but the breach was accidental and unintentional and should not be punishable by contempt.

262.  As regards (2) and (3), similarly, the defendants made a conscious and voluntary decision to conduct the search on the Microsoft Outlook emails on the laptop computers of the existing employees, without at the same time looking into the Microsoft Exchange server. On the other hand, I have found above that Yen was not aware of any difference between the data on the server and the data on the individual laptop computers of the fee earners at the time. In light of that, it would not be reasonable to expect him to cause a search on the Microsoft Exchange server. I hold that while the failure to search resulted in 541 emails being omitted from the April production and was therefore a breach of the production order, the breach was accidental and unintentional in the circumstances.[2] 

LAST RESORT

263.  The last resort principle is well established.

264.  Contempt proceedings should only be pursued as a last resort. In cases of civil contempt, the prime consideration is the enforcement of the court order in question. While there are cases where it is necessary (and indeed imperative) that the court should exercise its power in the punishment of contempt to achieve compliance, there are other cases where lesser options should be explored before one is to resort to the draconian power of committal. In cases where it can be demonstrated that an alleged contemnor has been making genuine and serious efforts in complying with the order and non-compliance by a certain deadline is due to circumstances beyond his control, it would be rare that the court will deem it appropriate to consider the option of committal. It is wrong to bring contempt proceedings without regard to the efforts and continued efforts by the alleged contemnor even though he has failed to completely fulfil its requirement within the time prescribed: China Metal at paras 60 and 78.

265.  It is submitted on behalf of the defendants that it was not necessary for the plaintiff to apply for committal as other options were available. Mr Maurellet highlights the objective fact that despite its deficiencies (as found by the court), the April production was a huge production. After it was made, the defendants made clear their willingness to meet the plaintiff’s concerns through retrieving documents from further sources and applying additional keywords. On this, see the correspondence between the parties’ solicitors from June 2021 onwards, as quoted in paras 94 to 99 above. Mr Maurellet submits that the correspondence is clear proof that the defendants were willing to perform whatever additional steps or procedures that could be reasonably agreed or otherwise directed. It was not necessary to bring the committal application.

266.  On the other hand, Mr Wong contends that the committal process was indeed appropriate and necessary to secure full compliance of the production order. It is notable, he submits, that in the post-April production correspondence, the defendants maintained (and in fact still maintain) that there was no breach, and the additional steps were proposed without prejudice to that position.

267.  Further, the background of the case is highly relevant. From the plaintiff’s perspective, the documents should have been returned promptly after the removal decision in late 2017. But that did not happen. In the production decision, DHCJ Le Pichon was highly critical of the conduct of the defendants in the return process (the documents being returned “in dribs and drabs”, and the defendants having conducted themselves “disgracefully”).

268.  The frustration of the plaintiff is captured by Seline Li’s oral testimony. Given the above background, the frustration is well understandable:

“例如佢第一樣嘢，喺法庭裏面，當日法官--我好辛苦喺法庭爭取到我攞番晒所有聯達嘅文件...

但係佢居然最--第一封信你話畀我聽就係為咗去令到聯達嘅文件佢哋易啲搵到，narrow down 佢哋嘅文件。

咁所以佢話叫我接受佢哋幫我搵出嚟嘅文件。佢叫我接受。但係據我嘅了解，應該係安永聽完法庭嘅文件之後，盡力去搵番所有嘅嘢。但係調番轉頭，佢而家係拎住法庭嘅order嚟話畀我聽「我畀唔晒你㗎喇，你揀喇。」

以我哋一個普通人，法庭嘅order係要畀我哋遵守㗎，唔係畀我哋喺上面討價還價㗎。

咁但係而家安永畀我嘅態度就係佢叫我去揀。其實對我嚟講係一個好大嘅打撃同埋好失望㗎。我用咗咁多時間、精神去睇呢啲文--嚟做--打呢個官司，都係想攞番所有嘅嘢啫，但係最後 ... ”

269.  In my view, in light of the background of the case, upon receiving the documents in the April production which were still incomplete and suffered from a number of apparent deficiencies, it was appropriate for the plaintiff to consider committal. It is true that the defendants made clear that they were willing to address the plaintiff’s concerns. In theory, the plaintiff had an option to wait and see whether the defendants would rectify the problem. However, given everything that had happened, in my view, it was not a reasonable option which should be imposed on the plaintiff. In the end, the objective fact is that it was only after the commencement of the committal application and further complaints made in affirmations filed in these proceedings that the December production and the 2023 production took place.

270.  I therefore find that the committal application has been properly brought under the last doctrine principle.

CONTEMPT PURGED?

271.  The defendants submit that if the court finds that they are in contempt, the contempt has by now been purged by the December production and the 2023 production.

272.  I accept that submission on the evidence. I refer to the discussion in para 199 above. The steps taken in the three rounds of production, when viewed collectively, were extensive, elaborate, and capable of retrieving all Schedule 1 documents.

273.  The plaintiff says that the two subsequent productions are still not good enough for the reasons set out in paras 128 to 130 and 152 above.

274.  I do not consider that any further search based on yet more keywords (especially generic ones) or a wholesale search of the large data pool (as opposed to sample reviews) may in fact be counter-productive as they are bound to generate even more false positives. I also find that the steps taken by the in-house legal team as set out in para 105(3) to be an effective means to confirm the existence of responsive documents.

275.  In the end, the two subsequent productions generated only a very small number of new documents, when compared to the overall size of the April production.

276.  I am satisfied that the defendants have by July 2023 handed over to the plaintiff all the Schedule 1 documents. The contempt has been purged. The next question is what effect the purge has on the outcome of the committal application.

277.  At the trial, there was a dispute as to whether the purge goes to mitigation only or it may be taken into account at the liability stage as well.

278.  Mr Wong submitted that the issue of purge should not affect liability. He relied on Alan Tang in which Cheng J remarked, at paras 57 and 66, that any further consideration of the question of purging should be left for consideration at the stage of the determination of the proper penalty for contempt. On the other hand, Mr Maurellet argued that the court has a discretion at the liability stage to take into account a purge of contempt, and decide the issue of liability accordingly.

279.  I agree with Mr Maurellet’s submission, which I consider to be sound as a matter of logic and correct as a matter of authorities.

280.  There is no good policy reason why a mechanistic approach, as contended for by Mr Wong, should apply such that once the three-stage questions are answered in the positive, a committal order should automatically follow. The court should retain a general discretion to decide whether the order is appropriate, giving effect to the general objectives of ensuring compliance of court orders and upholding the authority of the court with reference to the individual circumstances of each case.

281.  On authorities, I do not think that Alan Tang can be regarded as authority for the proposition that the issue of purge only goes to sentencing. There was no such discussion in that case, and her Ladyship was simply making a statement that that was what she would do in that case.

282.  On the other hand, the Court of Appeal decision in Re Mahesh Roy [2017] 5 HKLRD 830 shows that the issue of purge can be considered at the liability stage. The case concerned an order to summarily punish a person for contempt under section 42 of the Labour Tribunal Ordinance, Cap 25. The conviction was set aside on appeal. One of the grounds was that the contempt had been purged by the defendant’s apology, and it was held that it was wrong in principle for the defendant to have been committed in the circumstances. Lam VP (as he then was) held, at para 47:

“Again the apology should have been regarded as sufficient in terms of the purging of the contempt (if any). The Presiding Officer did not appear to have considered the adequacy of such apology. For reasons set out above, it is wrong in principle to commit in such circumstances.”

283.  Lastly, I also draw support from Atkin’s Court Forms (2^nd ed) Vol 10(2) (2021 Issue). In Form 47, the template contains wording to the effect that while the court is of the opinion that the defendant has committed a breach of a court order and is therefore in contempt of court, the court makes no order on the application given that the contempt has been purged.

284.  After the trial, both parties have written to the court confirming their agreement that the court does have the power and discretion to grant the order as set out in Atkin’s Court Forms.

RULING ON CONTEMPT

285.  In the present case, the three-stage elements of contempt have been established. I am also satisfied that it was necessary and appropriate for the plaintiff to bring the committal application and there is no contravention of the last resort principle. The defendants are therefore in contempt of court.

286.  But, as found, the contempt has by now been purged. I consider that there is no need for the court to make any order now in order to coerce compliance with the original orders. Further, this is not a case where the defendants deliberately disobeyed the orders at the first instance. Vast resources were subsequently devoted to purge the contempt. For these reasons, I do not see fit to consider imposing any penalty on the defendants save for on costs. I therefore would exercise my discretion not to make any order on the committal application.

ORDERS

287.  In conclusion, I am of the opinion that the defendants were in breach of the production order as made out under (1) the keyword search issue, (2) the Lotus Notes backup issue, and (3) the Category C documents issue. I am of the further opinion that they were in breach of the affidavit order. They are accordingly in contempt of court.

288.  However, the contempt has been purged through the December production and the 2023 production.

289.  In the circumstances, I make no order on the amended originating summons.

290.  On costs, I make an order nisi that the defendants do pay the plaintiff’s costs of the amended originating summons, including all reserved costs, to be taxed on an indemnity basis if not agreed, with a certificate for two counsel.

Annex 1

The 55 keywords

Annex 2

The 85 keywords

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Annex 3

The 112 additional keywords