WING HANG BANK LTD v. KIT CHOY DEVELOPMENT LTD AND ANOTHER

HCMP 5172/2002 & HCMP 220/2003
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 5172 OF 2002

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HCMP220/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 220 OF 2003

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D E C I S I O N

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1. The present application is for an order that the Plaintiff should produce, at the trial, originals of documents in its possession including signed and unsigned banking facility letters, charges and mortgages and extensions or renewals thereof, and also originals of cancellations from time to time, in particular, the last cancellation. 

2. At the hearing today, Mr Choy indicated that one major question for consideration and examination at the trial may be the question why the Plaintiff did not produce a full set of all the documents including allegedly relevant cancellations or non-renewals of certain banking facilities which are relied upon by the plaintiff in support of its claim in these proceedings. 

3. In the course of today’s hearing, Mr Tsang, appearing for the Plaintiff, indicated that the Plaintiff would not have any objection to making available the originals of those documents at the trial of these proceedings.  He also indicated, at my suggestion, that the Plaintiff would be prepared to afford Mr Choy the opportunity to inspect these documents at the Plaintiff’s solicitor’s offices prior to the trial if he should wish to avail himself of that facility. 

4. In those circumstances, against the Plaintiff’s undertaking and indication of preparedness to do those two things, it does not seem to me that it is necessary to make any order in relation to this summons.  In any event, at the end of the day, what documentation the plaintiff produces at the trial is be a matter for it to decide, and it may be that if it chooses not to produce certain documents, the court may be invited to and may, if it thinks it right to do so, draw certain inferences in relation to those matters.  That, as I say, does not appear likely to arise in this case since Mr Tsang has indicated that the documents will be produced in their original form in the sense that the originals of the documents in the bank’s possession will be produced.  It may be that some of these will be copies or carbon-copies rather than actual originals since, in some cases, the documents may be copies that are on the bank’s records, the actual originals having been sent out to Mr Choy or Kit Choy Development Limited so that the original document would no longer be in the bank’s possession.  But be that as it may, the bank has indicated that it will arrange for the originals of its files containing the mortgage facility letters and correspondence in relation to this matter to be available for the trial.  That being the case, it is not necessary to make any further order today.

5. So far as the costs of the application are concerned, Mr Choy has suggested that the costs of this application should be awarded to him.  However, at this stage, I think that the more appropriate order would be either for the costs to be in the cause or, alternatively, that they should be reserved.  On balance, I think that the appropriate order is that the costs of the application should be in the cause.