WU WEI v. LIU YI PING

HCA 1452/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1452 OF 2004

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J U D G M E N T

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1.  There are three applications before me today. 

2.  I shall first deal with the plaintiff’s amended summons dated 12 May 2005 for leave to amend.  Mr Tang who appears for the plaintiff withdrew this application in the course of the hearing.  I permit the plaintiff  to withdraw the summons and I shall deal with costs later. 

3.  The second application is the defendant’s amended summons dated 13 May 2005.  Mr Chan who appears for the defendant confirmed that he was not seeking any further amendment of the summons.

4.  By this amended summons dated 13 May 2005, the defendant asks for an order that:-

“Save and except the Defendant’s appeal against the order made by Deputy High Court Judge Gill on the 24^th day of January 2005 (‘the Order’) and the taxation and enforcement proceedings in respect of the costs orders previously given by the Court, all proceedings in this action (including proceedings for enforcement of and/or otherwise in relation to paragraphs 2, 3 and 4 of the Order) be stayed provided that if the Defendant’s appeal against the Order be disallowed by the Court of Appeal, the stay in relation to paragraphs 2, 3 and 4 of the Order be lifted.”

5.  The Order granted by Deputy Judge Gill comprised firstly of an injunction in respect of amounts in the HSBC joint account (paragraph 1 of the Order) and secondly of discovery orders in respect of monies which were originally in that account (paragraphs 2 – 4 of the Order). 

6.  If I should stay the action and if the Court of Appeal should dismiss the defendant’s appeal against the Order made by Deputy Judge Gill then we would have a life interlocutory injunction plus a stay of the proceedings in this action.  That does not sit well with the general position that an interim injunction is in aid of a party’s claim and that the action should be tried instead of being stayed permanently.

7.  As I understand Mr Chan, he did not seem to argue against that.  He sought to overcome that by undertaking not to have the order sealed (if I should grant the order sought) until the defendant’s appeal is disposed of and neither party has applied to set the order aside within 14 days.   With respect, this is not a satisfactory approach.  It only indicates that in the present state of affairs it is not appropriate to ask for a general stay with the possibility that an injunction will still be in force.  The more appropriate stage is to apply after the Court of Appeal shall have disposed of the appeal.  There is no point giving an order and having it suspended for three months pending the hearing of the appeal.  I would exercise my discretion and decline the defendant’s application. 

8.  Even if I had been minded to deal with the application on the merits, the first hurdle which the defendant would have to overcome is to satisfy me that Hong Kong is not the natural or appropriate forum for the trial.  Trial must mean the trial of the plaintiff’s pleaded claim.  The claim is that the defendant is alleged to have dissipated monies in a joint account opened with and maintained by a bank in Hong Kong.  The alleged chose in action was in Hong Kong; the alleged wrongful acts are said to have been committed in Hong Kong; and remedies claimed are tracing and accounts.  The court will require a lot of convincing that Hong Kong is not the natural or appropriate forum.  I express no final view on this point because I have decided this application on the ground that it is not appropriate to grant the order sought at this stage.

9.   What remains is the plaintiff’s application for an unless Order to comply with the discovery orders made by Deputy Judge Gill.

10.  The Order made by Deputy Judge Gill reads as follows:-

“	2.	the Defendant do disclose in writing, what has become of and the whereabouts of the monies originally standing in the Joint Account (HSBC bank account number 582-207189-888) as at 19th March 2004, including any monies, properties or assets traceable, obtained arising and/or deriving therefrom, together with such interest and/or profit thereon, giving the value location, details and particular of all such traceable assets and any known transfers, disposals and/or exchanges;
	3.	the Defendant do disclose by way of list of documents a list of all relevant documents in her custody possession or power relating to the disclosure above and allow the Plaintiff or his legal advisors to inspect the documents listed;
	4.	this information must be confirmed in an affidavit which must be served on the Plaintiff’s solicitors within 7 days from the date hereof;”

11.  While the drafting of the draftsman of the draft presented to the learned Deputy Judge can be improved upon, it is tolerably clear what the draftsman intended. 

12.  To comply with the Order, the defendant should identify the withdrawals from the amounts standing as at 19 March 2004, stating the date when and the amount of each withdrawal and what has become of it.  The defendant is to start off with a cash-flow statement of amounts flowing out from the joint account and to go on to trace each amount taken out to its destination as at the date of the accounting exercise.  The documents relating to the above have to be disclosed.  All these have to be done on oath.

13.    It is no compliance with the Order to give the other party a bundle of documents and leave it to the other party to try and reconstruct what has happened by going through the documents.  The defendant should account for the withdrawals step-by-step and amount-by-amount and what has become of it.

14.  It is clear that the defendant has not complied with the Order.  What I am going to do is to give the defendant the last chance to comply with the Order.  The defendant’s solicitor indicated that 21 days would be enough. 

[Hearing on costs]

15.  I order that:-

(1)	Leave to the plaintiff to withdraw the amended summons dated 12 May 2005, and costs of and occasioned by the application be to the defendant in any event.
(2)	Defendant’s amended summons dated 13 May 2005 be dismissed with costs to the plaintiff in any event.
(3)	Unless the defendant complies with paragraphs 2, 3 and 4 of the Order of Deputy Judge Gill dated 24 January 2005 by   4:00 p.m. on 4 July 2005, Monday, judgment be entered in favour of the plaintiff against the defendant for HK$3,721,815 with interest at judgment rate as from the date of writ.
(4)	Costs of the plaintiff summons dated 22 March 2005 be paid by the defendant to the plaintiff in any event.