WONG CHAK WING AND ANOTHER v. CAMELO INVESTMENT LTD AND OTHERS

HCA 65/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 65 OF 2011

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D E C I S I O N

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1. This is an application by the 9^th and 10^th defendants for an order to strike out or expunge 5 affirmations filed on behalf of the plaintiff in relation to the plaintiff’s Third Party Discovery application.

Background

2. On 4 September 2014, the plaintiff took out a discovery summons against a Third Party, the Commissioner of Police, seeking some documents related to some properties (ownership of which is disputed in the current case).  These documents were seized by the police in a criminal investigation.

3. There was no direction for the plaintiff to file any affirmation but on 27 November 2014, the plaintiff filed 5 affirmations in Chinese all marked “for hearing on 17^h December 2014 at 9:30 am”, that is, the date for hearing of the discovery application.

4. However, due to circumstances that need not bother this court, the plaintiff withdrew the discovery summons during the hearing on 17 December 2014 but asked the 5 affirmations to remain on the file.

5. Mr Kim, the Counsel for the plaintiff, claimed that the 5 affirmations are: -

(i)   relevant to her Third Party discovery applications; and

(ii)   “also within the context of the wider remit of the present action.”

6. Firstly, I have perused the 5 affirmations and find that these concern background information of the signing of certain documents related to the properties in dispute in this action.

7. Nothing there is relevant to the plaintiff’ discovery summons, which concerns with whether the Commissioner of Police has possession etc of various documents previously seized.

8. In any case, that summons has been withdrawn.

9. Secondly, if Mr Lim was arguing that the evidence within the 5 affirmations was relevant “within the context of the wider remit of the present action.”, then the proper way would be to prepare witness statements for these 5 persons, call them as the plaintiff’s witnesses and allow their evidence to be examined at trial.

10. To attempt to “slip in” evidence in this way was clearly scandalous and an abuse of process.

Order

11. I will therefore make order that:

(i) The 5 affirmations made by (i); (ii); (iii); (iv); and (v) respectively filed on 27 November 2014 for and on behalf of the plaintiff and marked for hearing on 17 December 2014 be expunged; and

(ii) Costs of and occasioned by this application be to the 9^th and 10^th defendants. Certificate for counsel be awarded.