鄭西資 v. 鄭博義 AND ANOTHER

HCA 407/2022

[2025] HKCFI 5210

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 407 OF 2022

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(By original writ and order to carry on made by Master Hui dated 10 April 2025)

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DECISION

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Introduction

1.  This is P’s appeal by his Notice of Appeal dated 7 April 2025 against the order of Master Patrick Siu dated 21 March 2025 (“the Order”) whereby the learned master granted D1’s application for the withdrawal of P’s Interrogatories dated 20 December 2024 (“P’s Interrogatories”) with costs (summarily assessed at HK$110,000.00).

2.  At this hearing, Mr Ming appears for P and Mr Tong appears for D1 as they did before the learned master.

3.  The pleadings filed by the parties are in the Chinese language and so are P’s Interrogatories. Counsel’s submissions are in English, however. No official English translation of the relevant documents is provided to this court.

4.  P’s Interrogatories are in the following terms:

“請列出除了你於日期為2024年10月31日的鄭博義的補充證人陳述書第27段當中提及的11個物業外，所有其他你在香港曾購入、出售和/或曾經或仍然持有(不論以唯一擁有人方式或聯權 或分權擁有人方式﹚的物業的地址。”

Relevant legal principles

5.  It is trite that I shall deal with this appeal by way of rehearing of D1’s summons and treat as though it came before this court for the first time.

6.  Interrogatories are governed by Order 26, r.1 of the Rules of the High Court and it provides,

(1)  A party to any cause or matter may in accordance with the following provisions of this Order serve on any other party interrogatories relating to any matter in question between the applicant and that other party in the cause or matter which are necessary either—

(a)  for disposing fairly of the cause or matter; or

(b)  for saving costs.

7.  Both Mr Tong and Mr Ming refer to Kao Lee & Yip v Donald Koo (unreported, HCA 8847/1993, 26.2.2002) in which Ma J (as the former CJ then was) set out the following relevant principles at §7:

(1) The general principle is that interrogatories are admissible where they go to support the applicant’s case or destroy the opponent’s : see Hong Kong Civil Procedure 2002 at paragraph 26/4/7. The width of this general principle is similar to the Peruvian Guano principles governing discovery of documents.

(2) However, this only goes to the question of admissibility. Whether a court will in its discretion allow interrogatories is entirely a different matter. Too often in the past, there has been a tendency to order interrogatories once admissibility is demonstrated. This is wrong.

(3) In the exercise of its discretion, the court must bear in mind that interrogatories will be ordered only where they are necessary either for disposing fairly of the cause or matter, or for saving costs : cf RHC, Order 26, rule 1(1); Hong Kong Civil Procedure 2002 at paragraph 26/4/11. This is the key consideration going to the exercise of discretion.

(4) The particular factors that a court will take into account in deciding whether or not to exercise its discretion are well‑known : see Lee Nui Foon v. Ocean Park Corporation (No.2) [1995] 2 HKC 395; Hong Kong Civil Procedure 2002 at paragraphs 26/4/5 to 26/4/34. It is not necessary for me to repeat these principles at length.

(5) I would, however, draw special attention to the case of Det Danske Hedeselskabet v. KDM International plc [1994] 2 Lloyds 534. There, Colman J referred to various considerations (or “yardsticks” as he termed them) for the court to bear in mind when considering the question of interrogatories: see page 537 (col.1). I set out one of these considerations in full:

“Fifthly, requests for information ascertainable by cross‑examination at the trial are inappropriate unless the party questioning can establish that it is essential for the proper preparation of his case that such information is made available to him before trial, in the sense that if the matter is left until cross‑examination at the trial that party will, or probably will be irremediably prejudiced in his conduct of the trial or the trial may be unduly interrupted or otherwise disorangised by the late emergence of the information.”

(6) The administering of interrogatories is not for the purpose of enabling a party to indulge in some sort of deposition‑taking exercise or to enable him to have a “dry run” in cross‑examination against the other side prior to trial. As I have already said, the key consideration is the factor of necessity referred to the RHC, Order 26, rule 1(1).”

8.  To assess the necessity and utility of P’s Interrogatories, I should first examine the parties’ pleaded cases.

Parties’ respective cases

9.  P’s 35-page Re-Re-Re-Amended Statement of Claim has the appearance of a homemade document and it discloses a highly unusual case.

10.  P was born in 1975. He is the second child. He is the only son of D1 and D2. P has an elder sister and a younger sister. D2 passed away in November 2024.

11.  The primary claim of P is based on common intention constructive trust and, in the alternative, resulting trust and the subject matters are all the landed properties acquired by D1 and/or D2 either in their joint names or in the sole name of each of them.

12.  P claims that D1 is a Chiu Chow descendant. Among Chiu Chow descendants, there is a tradition that grants sons special status stemming from their role in remaining with the family, unlike daughters, who would marry outsiders and leave the family one day. Following this tradition, P is the most important child in the family and he has the final say in family decisions whilst the views of his sisters are ignored.

13.  P claims that his grandparents once had a glorious history and operated a huge international shipping business in Chiu Chow. The family fortunate vanished because of government intervention in the Mainland.

14.  D1 came to settle in Hong Kong later and carried on an unlicensed dentist practice. Since P was a teenager, D1 had always told him that he had to restore the glory of the Cheng family (為鄭家復興). Being the only son in the family, P believes that his personal development and the development of the Cheng family are inseparable. He believes that his sisters’ development, however, has nothing to do with the Cheng family.

15.  P claims that before his parents got married, D1 learnt from a fortune teller that his career would go downhill in his forties and even come to a complete halt when he reached his sixties. D1 was advised that P would be the only one who could solve his problem though obviously P was not yet born or conceived at the material time.

16.  Against this background, P claims to have a mutual development relationship with D1. Given this relationship, since P was still in the primary school/ small, D1 and D2 on different occasions and in different places have repeatedly made promises and assurances (“the Promises and Assurances”) that all the properties of the Cheng family would belong to him regardless of whether or not he has made any monetary contribution to their acquisition.

17.  To support this allegation of the Promises and Assurances, P has pleaded altogether 42 instances as particulars. I need only mention here the last instance to indicate the strength of his allegation.

18.  P claims that between 2018 and 2020, D2 told P that his sisters would not argue about the beneficial ownership of the family properties with him a few times because their husbands could make good money. Therefore, D2 asked P not to worry.

19.  Based on the Promises and Assurances, P claims that his parents and he had a common intention/understanding (the “Common Intention/Understanding”) that P should starting from his reasonable life commencement stage (起初的人生合理時段) until his reasonable life ending stage (最後的人生合理時段) he should gradually become the actual beneficial owner of all the properties of the Cheng family and eventually P should become the sole actual beneficial owner of such properties.

20.  In passing I have to point out that I am not sure I understand the meaning of (起初的人生合理時段) and (最後的人生合理時段) and, thus, I may not be able to translate these two phrases correctly.

21.  P goes on to say that because of the Common Intention/Understanding, he has acted to his detriment and suffered loss and damage. P has given 18 examples of his detrimental acts. Again, I need only reproduce one or two of such examples for an understanding of the nature of his complaints.

22.  First, P claims that since 1998, he started working prematurely and he sacrificed his youth and the enjoyment of life for his non-stop work. To meet the expectations of D1 and D2 that he should work in the property field, he opted to study business and science courses. He further took dentist examinations twice, ultimately giving up his dream of studying film and becoming a director.

23.  In 2010, his wedding plan was postponed because he was still awaiting the transfer of beneficial ownership of the properties of the Cheng family. This delay meant he never got married.

24.  P also has a plea of promissory estoppel and an alternative claim in resulting trust based on his alleged financial contributions of over HK$5 million.

25.  The absurdity of P’s pleaded case is plain to see.

26.  In the Re-Re-Amended Defence, Ds gave an account of the background facts and some information about the personal history of P in addition to general denials of P’s allegation. Ds specifically deny the allegation of the Promises and Assurances and the Common Intention/Understanding. Ds deny any mortgage payments allegedly made by P.

Discussion

27.  Mr Tong submits that the learned master orally gave three main reasons for allowing the application of D1 after the conclusion of counsel’s submission. First, P’s Interrogatories were irrelevant. Second, they were an impermissible fishing exercise and thirdly, P should not be allowed to perform tracing before establishing liability.

28.  Mr Ming has raised no issue about the accuracy of this submission.

29.  Mr Ming has lodged with this court his skeleton submissions consisting of 45 pages. Without any disrespect, I do not intend to deal with all of his arguments. In particular, I need not go into the merits of the parties’ cases. It is abundantly clear to me that P’s Interrogatories are unmeritorious and D1’s application should be allowed.

30.  As is evident in the P’s Interrogatories, in D1’s supplemental witness statement dated 31 October 2024, D1 already sets out all the eleven properties that he and/or D2 have purchased (“the 11 Properties”) in a table at §26. The 11 Properties include those which have been sold by D1 and/or D2.

31.  There is no reason why P finds it necessary to ask Ds to make further disclosure in the absence of any reasonable belief that D1’s disclosure is incomplete. I have read the 11^th Affirmation of P. He said he could not completely rule out the possibility that D1 and/or D2 have ever bought and sold some other properties by the use of his money or the sale proceeds of the properties of the Cheng family.

32.  P must show a genuine need for his Interrogatories and cannot base his application on his surmise. P should not be allowed to go on a fishing expedition. P has not started to convince this court of the necessity of his interrogatories. P’s Interrogatories cannot assist a fair disposal of the cause or matter in this action. Nor can they save costs. Quite on the contrary, unnecessary costs have been incurred and further delay has been caused to the final determination of this action.

33.  More importantly, the core issue between the parties is whether the Promises and Assurances were ever made by any of Ds and whether the Common Intention/Understanding ever existed. The Common Intention/Understanding, if found, covers all the properties of D1 and/or D2 and not just any specific property. To resolve the present disputes between the parties, P’s Interrogatories are irrelevant. They do not help to advance P’s case or destroy Ds’ case. I hold that P’s Interrogatories are not admissible at all.

34.  I also agree with the learned master that any tracing exercise should only be allowed after P succeeds in his claim. P’s Interrogatories serve no meaningful purpose at this stage.

35.  All in all, I am satisfied that the learned master’s decision cannot be faulted and valid reasons have duly been given.

Conclusion and order

36.  For the reasons given, I come to the conclusion that P’s Interrogatories are devoid of merit and must be withdrawn. D1’s application must be allowed and the Order must stand. P’s appeal must be dismissed accordingly.

37.  Costs should follow the event. P should pay D1 costs of and occasioned by the appeal (including all reserved costs, if any) to be taxed if not agreed. This is an order nisi.

38.  This is a sad case. P finds it necessary to sue his parents and his allegations are most unusual. P is obviously in need of some kind of assistance. The current state of his pleadings and his evidence leave much to be desired and call for ratification badly. P’s Interrogatories and the present appeal only added to the complications.

39.  I have read the witness statements of the parties and I can see that both sides have gone off on a tangent. It appears that they are moving further and further away from the restoration of the glory of the Cheng family. Their legal representatives should put their heads together professionally and find the optimal way forward to serve their respective clients’ best interests in light of the underlying objectives of the CJR.