XCHRX METRONIC MULTIMEDIA HK LTD. v. THE COMMISSIONER OF CUSTOMS AND EXCISE

HCAL88/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.88 OF 1998

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J U D G M E N T

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1. I would not dismiss the applicant's action.

2. It is not disputed that the applicant had served all the documents it had in its possession, custody and control on 3 June 2000. In my view, there were exceptional circumstances in this case which would justify an extension of time to comply with the unless order. There was change in the management of the applicant and the new director only discovered the summons to dismiss the action after he was appointed as the director. The new director had to spend time to locate the documents. Another director who was appointed in 1998 stated that he was not involved with the daily operation of the applicant but left the matters in the hands of another director who recently chose to relinquish his management of the applicant. In the circumstances of the case, the failure by the applicant to comply with the unless order is not intentional or contumelious.

3. Furthermore, in my view, no prejudice is caused to the respondent now that all the documents that were available to the applicant had been produced. If the applicant was unable to produce all the documents covering the period of its claim, all that it means is that the applicant would not be able to substantiate some part of its claim.

4. I would allow the applicant time to comply with the unless order on the condition that the applicant is required to pay the costs of $50,000 within 14 days to the respondent. This represents the provisional costs of today's application and of the last hearing.

5. The respondent's application is refused.