CHAN KOON HAU formerly known as CHAN MONG CHOW v. LAM KONG MAN AND OTHERS

HCA 327/2017

[2019] HKCFI 230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 327 OF 2017

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DECISION

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1.  I am afraid I am not prepared to grant the unless order sought by the plaintiff. There is some evidence that the defendants do not have the original documents and that the police at least at some stage have had the documents in their possession for the purpose of investigation into the allegations of which the plaintiff has made a report. There is also evidence, in fact apparently an admission by the police, that a forensic report has been prepared and is in their possession. The forensic report as well as the original documents are the subject matter of a third‑party discovery summons taken out by the defendants which, however, has been dismissed this morning in default of appearance of the defendants.

2.  If there is difficulty in compliance with the consent order made on 12 October 2018, the correct course would have been for the parties encountering such difficulty to apply for any extension of time necessary or variation of the order.  It is, however, not justifiable, in my opinion, to impose an unless order which may not be possible to comply with, with draconian consequences.  If at the end of the day through no fault of anyone the original transfer documents are not adduced at trial, it seems to me it would be wrong to impose the consequence by way of an unless order that the defendants’ defence is to be struck out because the defendants, as things stand, may still be giving evidence themselves. 

3.  The defendants’ alleged conduct in disposing of the company, if proved, may have legal consequences but it is not, in my view, justification for the unless order in the terms sought.  It is said that the defendants are playing delaying tactics, but if this is true, it does not seem to me that the answer lies in applying for the unless order in the terms sought by the plaintiff but instead in taking the matter forward to trial ultimately instead of engaging in further interlocutory skirmishes.

4.  I think, therefore, that the plaintiff’s summons must be dismissed but, in the circumstances, I will not order any costs on that summons.