MANUFACTURER'S LIFE INSURANCE CO. OF CANADA v. HARVEST HERO INTERNATIONAL LTD. AND OTHERS

CACV 631/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 631 OF 2001

(ON APPEAL FROM HCCL 96 OF 2000)

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J U D G M E N T

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Hon Rogers VP and Hon Le Pichon JA:

1. This is an appeal by the plaintiff, Manufacturer's Life Insurance Company of Canada, from the order of Stone J made on 7 February 2001 dismissing its application for Norwich Pharmacal relief with costs on the common fund basis.

Background

2. Underlying the plaintiff's application is a dispute between the plaintiff and a BVI Company by the name of Roman Gold Assets Limited ("Roman Gold") as to the ownership of 1,800 shares ("the Shares") representing a 40 per cent stake in a joint venture company known as PT Asuransi Jiwa Manulife Indonesia ("Manulife Indonesia"), the largest foreign insurer in Indonesia. The partners in this joint venture company were the plaintiff as to 51 per cent, an Indonesian Company known as PT Dharmala Sakti Sejahtera Tbk ("DSS") as to 40 per cent and the International Finance Corporation a subsidiary of the World Bank as to the remaining 9 per cent. DSS was declared bankrupt by the Indonesian Court on 6 June 2000 and its assets including this 40 per cent stake in Manulife Indonesia was put up for public auction by the curator appointed by the Indonesian Commercial Court.

3. Shortly prior to the auction on 26 October 2000, Roman Gold lay claim to the shares in question and objected to the implementation of the auction. According to the objection lodged by its lawyers on 24 October 2000, Roman Gold's case was that it had obtained title by virtue of a Power of Attorney to Sell dated 1 February 1996 ("the Power of Attorney") in conjunction with the substitution Power of Attorney dated 1 March 1996 ("the Substitution Power of Attorney") and a Deed of Sale and Purchase of Shares dated 19 October 2000 ("the Deed of Sale"). The Power of Attorney relied on was executed by one Suyanto Gondokusumo ("G"), the President Director of DSS, in favour of the Harvest Hero International Limited ("Harvest Hero") the 1st defendant whereby DSS undertook to irrevocably granted the 1st defendant the Power of Attorney to Sell with Substitution Right, specifically, to sell the shares and to determine at the attorney's discretion the share price and to receive payment. On 1 March 1996, the 1st defendant acting through Lay Ie Leng the 3rd defendant in her capacity as the director of the 1st defendant executed the Substitution Power of Attorney and undertook to irrevocably substitute all its rights as granted in the Power of Attorney to Highmead Limited, a West Samoan company, specifically, the rights that it had been granted under the Power of Attorney. By the Deed of Sale, Highmead sold the Shares to Roman Gold.

4. As a result of this intervention, the auction was suspended whilst directions were sought from the supervisory judge who, later the same day, decided that the curator should be permitted to proceed with the public auction. The Shares were purchased by the plaintiff at that auction for approximately US$20 million. The purchase price was paid on 27 October 2000. Notwithstanding that the sale was with the authority of the supervisory judge, Roman Gold continued to challenge the plaintiff's entitlement to the Shares. Advertisements have appeared in the Indonesian press impugning the plaintiff's title to the Shares and Roman Gold has even made criminal allegations against those connected with the auction. The plaintiff asserts that, as a result, its economic interests have been injured and it has suffered damage.

5. The plaintiff has obtained advice from Indonesian lawyers to the effect that so far as Roman Gold's title is based on the documents referred to in its letter of 24 October 2000, its title is defective for the simple reason that the Deed of Sale was entered into several months after DSS's bankruptcy. Upon the making of the bankruptcy order, any power of attorney (assuming it had been binding on DSS) would have ceased to be operative. There is, therefore, at least a prima facie case that the plaintiff has good title to the Shares and a good cause of action against those impugning its title.

The present proceedings

6. On 14 November 2000, the plaintiff issued a writ against the 1st defendant, the donee of the Power of Attorney, the 2nd and 3rd defendants, Boxjet Limited and Mrs Lay who were the directors of the 1st defendant at the relevant time and the 4th defendant AMS Management Services Limited, the company secretary of the 1st defendant and took out a summons for Norwich Pharmacal relief. It sought inspection of documents and information from the 1st, 2nd and 4th defendants. The 3rd defendant who was outside the jurisdiction was not served. It would appear that her whereabouts are unknown. The burden of the plaintiff's complaint is that the transfer of the Shares by DSS to Roman Gold through a series of shelf companies was a sham transaction, the purpose of which was to remove the most valuable of DSS asset away from its creditors.

7. Suffice to say that the plaintiff's prima facie case against the defendants was reinforced by the evidence filed by the 1st defendant in opposition to the plaintiff's application. Contrary to what it had earlier (by letter of 24 October 2001) asserted, the 1st defendant sought to rely on a different root of title viz. a power of attorney to pledge the shares and a substitution power of attorney to pledge the shares of even date with the Power of Attorney and the Substitution Power of Attorney referred to earlier as well as a Share-Pledging Agreement dated 1 March 1996. Quite apart from this volte-face, no notice of pledge was ever given to DSS. That appeared to be a requirement under Indonesian law for the pledge of registered, as distinct from bearer, shares if it is to be binding on the company. In these circumstances, it was hardly surprising that counsel for the 1st defendant conceded that the plaintiff did have a prima facie case.

8. The relief sought by the plaintiff was for a dual purpose: for use in potential foreign proceedings (whether in Indonesia and/or Singapore) and in the substantive Hong Kong proceedings (HCCL 105/00) issued against the same parties as in the summons for Norwich Pharmacal relief and one Maggie Ho the 5th defendant who is the owner of the 4th defendant. HCCL 105/00 was brought shortly prior to the hearing before Stone J. Its existence emerged during the course of that hearing. The plaintiff's case was pleaded thus:

"7. At a subsequent date which, pending discovery and the administration of interrogatories herein, the Plaintiffs are unable to identify with certainty, Harvest Hero became party to the following transaction (the 'Transaction'):

(a) DSS, acting by Mr Gondokusumo, purported to give to Harvest Hero a power of attorney to:

(i) sell the Shares;

(ii) determine the sale price of the Shares at its discretion; and

(iii) receive the proceeds of sale of the Shares;

(b) Harvest Hero, acting by Mrs Lay, purported to transfer those same rights to Highmead Limited ('Highmead'), a company incorporated under the laws of Western Samoa but with an address in Singapore; and

(c) Highmead purported to sell the Shares pursuant to those rights to Roman Gold Assets Limited ('Roman Gold'), a company incorporated under the laws of the British Virgin Islands but also with an address in Singapore.

8. The Transaction was fraudulent, and the documents evidencing it were forgeries. There was no genuine sale of the Shares and no proceeds of sale. Highmead and Roman Gold were at all material times companies beneficially owned and/or controlled by Mr Gondokusumo and/or his nominees and operated in accordance with his directions. The purpose of the purchase of Harvest Hero by or on behalf of Mr Gondosukumo, and of the Transaction, was to remove the Shares, which were DSS's most significant and valuable asset, out of DSS's estate in liquidation where they would be sold for the benefit of DSS's creditors, and to keep them instead within the control of Mr Gondokusumo. The purchase and the Transaction had the further or alternative purpose of establishing and documenting a fictitious claim to the Shares in competition with DSS's legitimate claim, which could be used to prevent or delay any sale of the Shares by the Curator."

9. After the hearing below, the plaintiff reached a settlement agreement with the 2nd, 4th and 5th defendants in HCCL 105/00. Proceedings against them in Hong Kong have been stayed in return for their agreement to provide information. The court was informed that information obtained from them is to the effect that Harvest Hero and Highmead were dormant companies in 1996 when the powers of attorney were allegedly granted and that these powers had been back-dated to make it appear that the shelf companies were active at the time. Maggie Ho has been convicted on her own plea of guilty to a number of offences involving falsely back-dating documents filed in the Companies Registry in relation to Harvest Hero, including consents to act as a director, appointments to act as a director and annual returns.

10. As a result of the settlement agreement, the orders sought in this appeal are directed only at the 1st defendant:

1. An order for discovery against the 1st defendant (or its duly authorised representative) requiring the 1st defendant to forthwith set forth and disclose to the plaintiff the information and documents set out below, to allow the plaintiff to inspect those documents and take copies thereof:

1.1 the power of attorney to sell with substitution rights granted in Jakarta, Indonesia on 1 February 1996 by DSS to the 1st defendant and represented by the 3rd defendant i.e. the Power of Attorney;

1.2 the power of attorney to sell with substitution rights granted in Jakarta, Indonesia on 1 March 1996 by the 1st defendant to Highmead, i.e. the Substitution Power of Attorney;

1.3 all documents which are or have at any time been in their possession, custody or power relating to the Shares in Manulife Indonesia previously owned by of DSS.

2. An order requiring the 1st defendant to disclose to the plaintiff:

2.1 the identity of the person, persons, company, companies, firm, firms, body or bodies from whom the 1st defendant received the documents referred to in paragraphs 1.1 and 1.3 above;

2.2 full details of the circumstances in which the 1st defendant received the documents referred to in paragraphs 1.1 and 1.3 above;

2.3 the identity of the person, persons, company, companies, firm, firms, body or bodies from whom the 1st defendant received instructions to enter into the document referred to in paragraph 1.2 above;

2.4 full details of the circumstances in which the 1st defendant received the instructions to enter into the document referred to in paragraph 1.2 above;

2.5 full details of the 1st defendant's knowledge of the sale of the 1,800 shares in Manulife Indonesia by DSS and/or their lawful attorneys;

2.6 the identity of any other person, persons, company, companies, firm, firms, body or bodies involved in the alleged sale of the Shares by DSS to Roman Gold, in particular, the identity of any person or persons who were involved, directly or indirectly, in the management and ultimate control of Harvest Hero, Roman Gold and Highmead.

11. The issues which arise in this appeal are considered below.

Jurisdiction at common law

12. The judge rejected the plaintiff's proposition that at common law the court has jurisdiction to grant Norwich Pharmacal relief in aid of potential foreign proceedings, whilst accepting that the court had jurisdiction to grant such relief in aid of proceedings taken or contemplated to be taken in Hong Kong. Pausing there, if it were appropriate to grant Norwich Pharmacal relief in aid of proceedings in Hong Kong, what would be the rationale for prohibiting the successful applicant from using the information obtained in aid of potential foreign proceedings? None can be discerned from the judgment below. Indeed, no case has been cited which contains such a limitation. To the contrary, a substantial body of case law supports the plaintiff's jurisdictional proposition.

13. In Sony Corporation v Anand [1981] FSR 398, the plaintiff wished to use information obtained in England revealing suppliers of infringing goods in Hong Kong and Taiwan in proceedings outside the jurisdiction. Browne-Wilkinson J (as he then was) explained the juridical nature of Norwich Pharmacal relief (at 401-402) in these terms:

" There is however quite a different species of action in which the subject-matter of the legal claim established is a right to discovery of information. It was recently revived by the decision of the House of Lords in Norwich Pharmacal Company v. The Commissioners of Customs and Excise [1974] A.C. 133. In such an action the only claim of A against B is an order that B do disclose to A certain information. It is the old Chancery bill for discovery. The purpose of the action is to enable A, having got that information from B, to pursue his claim against third parties. The Anton Piller jurisdiction is based on that principle. ...

It is therefore, in my judgment, established that one of the main purposes of the Anton Piller order is to enable the plaintiff to get information from the defendants for the very purpose of using such information not against those defendants but against third parties. It therefore seems to me that information obtained under an Anton Piller order (on the basis that the defendants being implicated in a tortious wrongdoing are bound to give information as to other persons involved in that wrongdoing) can be used for the purposes of pursuing claims against third parties implicated in the same wrongful handling of the same infringing goods.

.... I do not consider that there is any limitation which prevents information obtained pursuant to an Anton Piller order being used for the purposes of instituting or supporting criminal proceedings against third parties."

On that basis Browne-Wilkinson J held that, even in the absence of any specific order, a plaintiff who had obtained the information under a Norwich Pharmacal order could use that information to protect its interests even if it entailed the information being used in criminal proceedings in an overseas jurisdiction.

14. Several years later, the same question came before the Court of Appeal in Smith Kline Limited v Global Pharmaceutics Limited [1986] RPC 394. That was a case where proceedings had been instituted by the plaintiff against the defendant within the jurisdiction for breach of the plaintiff's patent. Discovery was granted for the disclosure of the identity of a wrongdoer outside the jurisdiction whose wrong was committed outside the jurisdiction, the only proviso being that the transaction in which the wrongdoer outside the jurisdiction was involved related to the same subject matter as that which the defendant wrongdoer within the jurisdiction was involved. Browne-Wilkinson LJ held (at 400) as follows:

"... in this action we are concerned with a claim by 'A' against 'B' to discover the name of a third party. 'X', whom it is alleged is guilty of infringing 'A's' patent. We are not concerned with discovery, as in an ordinary action of 'A' against 'B', with documents and information relating to 'X' relevant to the claim by 'A' against 'B' for a wrong done by 'B'.

...

The question then remains whether, under the Norwich Pharmacal case, it is possible for the court to order the defendants in this case to disclose the name of 'X' on the ground that 'X' is responsible for a breach of the law other than that of the United Kingdom (in this case the law of Spain or of some E.E.C. country) so as to enable S.K.F., the plaintiffs, to sue in the relevant foreign court.

... in my judgment the Norwich Pharmacal case does establish that the court has jurisdiction to order disclosure of the name of 'X', even though such disclosure is required solely for the purpose of bringing proceedings in a foreign court provided that it is shown that the transaction by 'X' and the transaction in which the defendant is involved relate to the same subject matter."

That statement of principle was plain and unambiguous: not only was there no suggestion that Norwich Pharmacal relief was only available in specific types of cases, it was a clear statement that it is available to aid potential foreign proceedings.

15. In our view, those cases accurately set out the Norwich Pharmacal principle enunciated by the House of Lords [1974] AC 133. In the Norwich Pharmacal case, both Lord Cross (at 195E-197C) and Lord Kilbrandon (at 203G-204A) cited with approval the decision of the Supreme Court of Massachusetts in Post v Toledo, Cincinnati and St. Louis Railroad Co (1887) 11 N.E. Rep. 540, a case where relief was granted to enable the plaintiff to take proceedings in a different state, i.e. foreign proceedings.

16. The judge's rejection of the court's common law jurisdiction to grant Norwich Pharmacal relief was partly based on his conclusion that the only jurisdiction to order discovery in aid of foreign proceedings is statutory, namely, Part VIII of the Evidence Ordinance, Cap. 8 and RHC Ord. 70 which together form a comprehensive self-contained code. But the effect of Cap. 8 and RHC Ord. 70 is the regulation of the obtaining of evidence within the jurisdiction for use in foreign proceedings. In that sense, the jurisdiction is exclusively statutory. But nothing in Cap. 8 or RHC Ord. 70 impinged on the court's power to grant Norwich Pharmacal relief. A Norwich Pharmacal application is directed at information as distinct from evidence; it is brought to obtain information to enable the party seeking the information to right a wrong by taking steps whether abroad or within the jurisdiction usually by bringing proceedings against a person who has been implicated in wrongdoing. The jurisdiction to grant Norwich Pharmacal relief is therefore an entirely different jurisdiction, separate and distinct from the statutory regime which governs the obtaining of evidence in Hong Kong for use abroad. See Sony Corporation v Anand (supra).

17. If, for the sake of argument, the judge was correct in reaching the conclusion that the only jurisdiction to order discovery in aid of foreign proceedings is statutory, how is one to explain the countless orders made based on the Norwich Pharmacal principle compelling the disclosure of names and other information in aid of potential foreign proceedings of which Sony Corporation v Anand and Smith Kline are examples? In Hong Kong there has been a long standing practice from the 1970's whereby identities of those, including parties known to be overseas, who have been responsible for tortious activities have been ordered to be disclosed together with details of their actions. Mr Chua was driven to devise some separate category into which those decisions could be put. He submitted that these were explicable on the basis that they came within the court's jurisdiction to grant ancillary relief when exercising its powers under section 21L of the High Court Ordinance, Cap. 4. But that is no explanation at all. The Norwich Pharmacal case was not about injunctive relief: it was an action solely for discovery. Mr Chua's submission is therefore one which we are unable to accept.

Necessity for Norwich Pharmacal relief

18. It is common ground that for Norwich Pharmacal relief to be granted, the plaintiff must be able to demonstrate a prima facie cause of action against a party or parties whose identity cannot be ascertained without the information sought. As Millett J explained in Lonrho Plc v Fayed (No. 2) [1992] 1 WLR 1 at 13-14 the jurisdiction is founded on judicial necessity: its justification will not otherwise become available, so that to withhold relief would amount to a denial of justice.

19. The judge below held that the plaintiff had failed to satisfy the pre-requisite in that the plaintiff clearly knew who the wrongdoer was in view of paragraph 8 of the Statement of Claim in HCCL 105/00 which alleged that Highmead and Roman Gold were beneficially owned and/or controlled by G. He referred to the Lonrho case where the plaintiff had pleaded the name of the person in question in its statement of claim as being the wrongdoer. Millett J found (at 14C and F) that the plaintiff acknowledged that it might be wrong, but it still sought inspection

"... not to ascertain the identity of the source of finance, but to confirm its belief that it already knows it. That is not a proper ground for invoking the jurisdiction.

...

It knows or thinks it knows, whom to sue: it seeks inspection in order to find out whether it has a cause of action against him which it can properly plead. In my judgment, it is a fishing exercise and ought not to be allowed."

The judge below considered these observations to be apposite to the present case.

20. Mr Huggins SC, for the plaintiff, submitted that it is the identity of persons other than the defendants and G that the plaintiff wishes to know. Harvest Hero, Highmead and Roman God which are plainly implicated in the transaction complained of are Hong Kong and West Samoan shelf companies. Part of the information the plaintiff seeks is the identity of all the unidentified persons in the chain of control of these companies leading back to G. As a matter of principle, there is no reason why the plaintiff is not entitled to know all others (besides G) implicated in the wrongdoing. It is analogous to identifying the chain of supply in patent infringement cases. We see no grounds for depriving the plaintiff of its prima facie right to know from the 1st defendant which is plainly implicated in these wrongs the identities of all the wrongdoers. Whilst the identities of G and the defendants in the 2nd action are known, there may be others involved and the plaintiff is entitled to know if there are such persons and who they are. (In this connection, it should be noted that paragraph 2.5 of the order sought by Mr Huggins SC set out in [10] above needs to be modified to reflect the submissions made at the hearing of the appeal.)

21. In addition to the identity of such unidentified persons, the plaintiff also seeks information. See paragraph 2.2, 2.4 and 2.5 of the order sought. It was accepted that the relief available under the Norwich Pharmacal principle is not confined to the identity of unidentified wrongdoers but also extends to information. So, even if the objection based on Lonrho had any merit (which it does not), it is no answer to that part of the application that pertains to information.

Discretion

22. The question of jurisdiction apart, the judge declined to exercise his discretion to grant the relief sought for a number of reasons. He held that to do so would be oppressive, that the information sought would be discoverable in due course in HCCL 105/00 and that it would be tantamount to granting the totality of relief sought in HCCL 105/00 at the very outset of the proceedings. We deal with these in return.

Self-incrimination

23. At page 12 of the judgment, the judge considered the question of the exercise of his discretion to make the order sought. Quoting from the judgment of Sir Richard Scott VC in First American Corp. v Zayed [1999] 1 WLR 1154, where the vice-chancellor had referred to serious allegations of fraud rendering an application for examination of the particular witnesses as oppressive, the judge below considered that the same applied in the present case. In doing so he made reference to the privilege against self-incrimination which was the basis of the decision in Rank Film Limited v Video Information Centre [1982] AC 380. In argument Mr Chua sought to raise the point as to the privilege in relation to self-incrimination as a discrete issue. Whilst it can be noted that the judge dealt with the matter as part of the objection of oppression, it would be convenient to consider the effect of the privilege in relation to the order sought before dealing with the exercise of discretion generally.

24. In the Rank case, the House of Lords held that the privilege against self-incrimination had been infringed by the making of an Anton Piller order in a case where there had been blatant copying of films for illegal commercial purposes. As is well-known, statutory provisions covering intellectual property cases were introduced shortly after that decision both in the United Kingdom and in Hong Kong to allow such orders to be made but to prevent the use of any information obtained in prosecutions for related criminal offences.

25. The giving of an undertaking not to use any evidence obtained in criminal prosecutions was briefly considered in the Rank case. At page 443C-E, Lord Wilberforce referred to such undertakings. The difficulty which he foresaw was that any such undertaking would bind only the plaintiff who gave it. He also considered that any information provided might lead to a chain of inquiry or discovery of real evidence of an incriminating character. Nevertheless, at the foot of the page, Lord Wilberforce made reference to the fact that it was conceivable that "... forms of order will be worked out which will enable the orders to be as effective as practicable while preserving the defendant's essential rights."

26. As regards the present case, as has already been seen, the allegations in the statement of claim in HCCL 105/00 encompass conspiracy to commit fraud. It is to be observed that fraud is an offence under section 16A of the Theft Ordinance. By section 33 of that Ordinance,

"(1) A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Ordinance-

(a) from answering any question put to that person in proceedings for the recovery or administration of any property, for the execution of any trust or for an account of any property or dealings with property; or

(b) from complying with any order made in any such proceedings,

but no statement or admission made by a person in answering a question put or complying with an order made as aforesaid shall, in proceedings for an offence under this Ordinance, be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the wife or husband of that person."

27. It would thus seem that fear of self-incrimination of the substantive offence of fraud would not be a ground for resisting the order sought in the present case. What might remain a potential difficulty could be that any matter disclosed might be used as evidence or lead to evidence being revealed in relation to an offence of conspiracy to commit fraud on the part of the party disclosing that matter.

28. In relation to identification of parties under the terms of paragraphs 2.1, 2.3 and 2.6 of the order sought, it is difficult to see how there could be any possibility of such disclosure giving rise to self-incrimination. At present, it is known that such persons, who are required to be identified, must exist. The revelation of the identity of any such person could only have the effect of changing a charge in a criminal prosecution from one where some of the conspirators were alleged to be persons unknown to one where all conspirators are named.

29. In relation to paragraphs 2.2, 2.4 and 2.5, revelation of the information sought might well be prejudicial to the 1st defendant or its directors and give rise to knowledge of facts which could potentially be used in a prosecution for an offence such as a criminal conspiracy to commit fraud of the nature of which complaint is made. Nevertheless, in view of the provisions of section 33 of the Theft Ordinance it would seem incongruous that proceedings should be brought for a conspiracy to commit fraud using information revealed if it were not possible to bring proceedings for the substantive offence using the same matter.

30. In the course of argument, Mr Huggins suggested that at the end of paragraph 2.5 of the order sought, as set out in the notice of appeal, there could be included words such as "save insofar as the present directors of the 1st defendant claim on affidavit that such details may expose them to liability of prosecution."

31. An inclusion of such a provision would accord with the decision in IBM United Kingdom Limited v Prima Data International Limited and Others [1994] 1 WLR 719. In that case Sir Mervyn Davies sitting as a High Court judge had refused to set aside an Anton Piller order which had contained a similar provision. Such a provision, if it extended to paragraphs 2.2 and 2.4, would adequately protect the 1st defendant's privilege as to self-incrimination but might well result in no information being provided. It would seem that there may be a more satisfactory alternative that would be more likely to lead to the revelation of the necessary facts, whilst, at the same time, preserving the 1st defendant's privilege.

32. In the case of A.T. & T. Istel Limited and Another v Tully and Another [1993] AC 45, the House of Lords considered the privilege against self-incrimination in relation to disclosure which had been required under an ex parte order. Those proceedings concerned an action for fraud and breach of trust. There was no suggestion in any of the speeches in the House of Lords other than that the privilege against self-incrimination was a firmly entrenched facet of the law. Reference was made to Lord Mustill's analysis of the "rights of silence" in Reg. v Director of Serious Fraud Office, Ex parte Smith [1993] AC 1. The kernel of the Istel decision of the House of Lords was articulated by Lord Ackner at page 63G where he said:

"... I would allow this appeal on the ground that the courts are entitled to substitute some different protection in place of the privilege against self-incrimination, providing that such protection can properly be considered as adequate protection."

33. The adequate protection in that case was a combination of paragraph 33 of the order which read as follows:

"No disclosure made in compliance with paragraphs 18 to 32 inclusive of this order shall be used as evidence in the prosecution of an offence alleged to have been committed by the person required to make that disclosure or by any spouse of that person."

and a letter from the Crown Prosecution Service which indicated that the Crown Prosecution Service had sufficient evidence of its own as a result of police investigations and would only use material obtained independently of the High Court proceedings.

34. It would seem that the Department of Justice in Hong Kong should have little difficulty in giving an undertaking on behalf of the Secretary for Justice not to use any matter disclosed as a result of an order, made on the plaintiff's present application, in any prosecution for an offence relating to the matters under complaint in HCCL 105/00. Were such an assurance to be given on behalf of the Secretary for Justice and a paragraph of similar effect as paragraph 33 in the Istel action, quoted above, be included in the order the 1st defendant's position in relation to self-incrimination would be adequately protected.

35. Should the Secretary for Justice be prepared to give an assurance in the terms suggested and the plaintiff be prepared to accept an order with the inclusion of a paragraph with an effect similar to paragraph 33 quoted above, the objection based on the privilege in relation to self-incrimination could not be sustained. In the alternative, there could be no objection to an order as proposed but the saving provision would have to apply to all paragraphs relating to details, as opposed to identities, and hence would have to relate to paragraphs 2.2 and 2.4 as well as paragraph 2.5. Once the matter of self-incrimination has been resolved in one of those ways so as to preserve the protection of the 1st defendant and its directors, the objection based on oppression ceases to have validity.

Discovery in HCCL 105/00

36. One of the matters the judge took into consideration was the fact that the information sought would in due course be discoverable in HCCL 105/00. Assuming that to be the case, the judge was nonetheless duty-bound to consider whether or not discovery ought to be ordered. In Societe Romanaise De La Chaussure SA v British Shoe Corporation Limited [1991] FSR 1, when confronted with a similar situation, Millett J went on to consider whether or not to exercise his discretion to grant discovery immediately. He held (at 6) that the relevant test to be applied in that situation was either the balance of convenience test or that the plaintiff would suffer irreparable harm by failure to obtain the information immediately. In the present case, the judge did not consider these matters; rather, he based it on the court's 'disinclination' to make a discovery order in such a situation although it was not readily apparent upon what such 'disinclination' was founded. In our judgment, the fact that discovery may in due course be obtained is not of itself a sufficient reason not to consider the exercise of the discretion. If the plaintiff is delayed further in obtaining the information sought, it may well be hampered both practically and procedurally in taking action against the parties whose identities are sought. Indeed, if the plaintiff's allegations prove correct, the more time that it takes the plaintiff to seek redress, the more likely it is that any party at fault will be able to take steps to cover its deeds.

Relief in HCCL 105/00

37. In HCCL 105/00, the plaintiff seeks substantial damages. Granting Norwich Pharmacal relief does not have that result.

Order

38. This appeal is allowed and the order below is set aside. The plaintiff is to submit minutes of order for approval. We also make an order nisi for costs. In accordance with the usual practice, the defendant is entitled to the costs below but only on a party and party basis, and the plaintiff is entitled to the costs of the appeal.