LAU SIU HUNG AND KWOK SIN KWAN (BEING THE JOINT AND SEVERAL LIQUIDATORS OF TOM IP & PARTNERS, ARCHITECTS, ENGINEERS & DEVELOPMENT CONSULTANTS LTD (IN LIQUIDATION)) v. P&T INTERNATIONAL INC.

CACV 104/2022, [2025] HKCA 1032

On Appeal From [2021] HKCFI 105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2022

(ON APPEAL FROM HCCW NO 216 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  The appellants are the liquidators (“Liquidators”)  of Tom Ip & Partners, Architects, Engineers & Development Consultants Ltd (葉福全建築工程師樓地產發展顧問有限公司)  (“TIPHK”), a company incorporated in Hong Kong and now in compulsory liquidation.  They applied under section 286B of the Companies (Winding Up and Miscellaneous Provisions)  Ordinance (Cap 32)  for an order requiring the respondent, P & T International Inc (“P & T”), to submit an affidavit concerning certain matters relating to the affairs of TIPHK.  Their application was dismissed by DHCJ William Wong SC on 23 December 2020 (with reasons handed down on 11 January 2021).[1]  The judge also refused leave to appeal in September 2021,[2] but this court granted leave in March 2022.[3]  The Liquidators now appeal against the dismissal of their summons below.

Background

2.  TIPHK carried on business in the provision of architectural, engineering and development consultancy services.  Before its liquidation, TIPHK had been involved in, inter alia, a project in Guangzhou in which it rendered professional services together with P & T. There was a dispute with a third party arising from that project, leading to litigation in Mainland China, in which TIPHK and P & T together eventually prevailed.  By a judgment issued in 2004, the Higher People’s Court of Guangdong ordered the losing party to pay TIPHK and P & T a sum of over USD 2.4 million. 

3.  It appears that eventually, by mid-2018, there was in total a sum of about RMB 20.2 million recovered pursuant to the Guangdong judgment (“Recovered Sum”), ready for distribution.

4.  By a joint letter to P & T (including its Shanghai subsidiary (“P & T Shanghai”))  dated 8 June 2018, Info Logistics Ltd and Multiple Surveyors & Consultants Ltd, who together held 53.125% of TIPHK (the remaining 46.875% being held by Mr Tom Ip), stated that they knew P & T would soon receive proceeds of recovery from the Guangdong judgment of over RMB 20 million and that half of it belonged to TIPHK.  They asked P & T to refrain from remitting the money to TIPHK’s account since there would be a change of control over TIPHK on 19 June 2018 and there would be new directors joining TIPHK (in addition to the existing directors

5.  Notwithstanding this letter, an agreement was executed among 5 parties, apparently in June 2018, to deal with the proceeds of recovery from the Guangdong judgment (“Five-Party Agreement”).  The 5 parties were: (1) P & T, (2) TIPHK, (3) P & T Shanghai, (4) a Mainland company wholly owned by Tom Ip bearing his name, called 叶福全(深圳)建筑工程设计有限公司 (“TIPSZ”), and (5) a Mainland law firm.  This agreement provides, inter alia:

(1)  Clause 1: P & T and TIPHK irrevocably agree that all their rights and interests under the Guangdong judgment, including the Recovered Sum, are transferred to and are to be collected by P & T Shanghai.

(2)  Clauses 2.0 and 2.1: P & T and TIPHK instruct P & T Shanghai to pay on their behalf the Mainland law firm legal fees in the sum of RMB 1,272,640.

(3)  Clause 2.2: P & T and TIPHK are respectively entitled to the Recovered Sum in the proportion of 65 : 35.  Accordingly, after payment of the Mainland law firm’s fees, the remainder of the Recovered Sum attributable to TIPHK amounted to approximately RMB 6.6 million.  We shall refer to this as “TIPHK’s Portion”.

(4)  Clause 3.0: At the request of TIPHK, P & T Shanghai will pay TIPHK’s Portion to TIPSZ, after TIPSZ has issued a VAT invoice to P & T Shanghai for the same amount.

(5)  Clause 4.0: TIPHK and TIPSZ warrant that TIPHK has the right to deal with TIPHK’s Portion and that P & T and P & T Shanghai will not incur any loss or liability as a result of performing Clause 3.  If TIPHK does not have the right to deal with TIPHK’s Portion, or a third party raises a dispute or litigation with regard to TIPHK’s Portion, TIPSZ will unconditionally return the amount received to P & T Shanghai.  If loss is caused by TIPHK and/or TIPSZ to the other parties, TIPHK and TIPSZ will jointly be liable to compensate them.

6.  According to the signature page of the Five-Party Agreement, Tom Ip signed on it on behalf of both TIPHK and TIPSZ on 25 June 2018.

7.  On 3 August 2018, a creditor presented a petition in Hong Kong to wind up TIPHK.  A winding up order was made on 7 November 2018 with the appellants being appointed as provisional liquidators.  They were subsequently appointed joint and several liquidators on 1 April 2019.

8.  The Liquidators wrote to P & T on 25 May 2020 to ask for certain information and documents concerning the project in Guangzhou.  After further correspondence, by letters dated 23 June 2020 and 3 July 2020 respectively, the Liquidators demanded under section 286B that P & T provide information and documents concerning TIPHK as set out in 2 schedules, which are materially identical to the 2 schedules attached to the summons subsequently issued.

9.  The Liquidators’ summons, issued on 24 July 2020 pursuant to section 286B, sought an order that P & T “do submit to the court an affidavit containing information as set out in” Schedules A and B thereto. 

10.  Schedule A contains 2 paragraphs preceded by the heading “Information to be provided by the Respondent”.  Paragraph 1 seeks information relating to the discussion, drafting and signing of the Five-Party Agreement, including but not limited to: (i) how and why the Recovered Sum was split 65 : 35 as between P & T and TIPHK; (ii) information of previous negotiations and/or agreements between P & T and TIPHK on the sharing of the Recovered Sum; and (iii) why P & T still signed the Five-Party Agreement on 21 June 2018 and agreed to pay TIPHK’s Portion to TIPSZ, a company wholly owned by Tom Ip, notwithstanding the majority shareholders’ letter dated 8 June 2018.  Paragraph 2 seeks information on how the Five-Party Agreement was signed by each party including (i)  where P & T and the other parties signed the Five-Party Agreement, and (ii)  how the Five-Party Agreement was passed from one party to another during the signing process.

11.  Schedule B contains 3 paragraphs preceded by the heading “Documents to be provided by the Respondent”.  Paragraph 1 seeks copies of all agreements of the Guangzhou project including any service agreements entered into between P & T and TIPHK.  Paragraphs 2 and 3 essentially replicate paragraphs 1 and 2 of Schedule A with the word “documents” substituted for “information”.

12.  After the summons was issued, on 25 September 2020, P & T filed an affirmation made by a director, Mr Che.  Although it was filed in opposition to the application, Mr Che’s affirmation actually produced a number of documents in response to the Liquidators’ questions, including an agreement made in 1992 for the engagement in the Guangzhou project, 3 letters between P & T and TIPHK dated 1992, 2 letters dated 1998 concerning the payment of legal fees, a company search concerning TIPHK in May 2018, a letter from P & T dated 20 June 2018 to TIPHK enclosing a copy of the Five-Party Agreement (already signed on behalf of P & T and dated 21 June 2018)  and asking TIPHK and TIPSZ to send their authorised representatives to sign the agreement, and 2 sets of TIPHK’s board minutes of 20 June 2018 authorising Tom Ip to sign the Five-Party Agreement and deal with TIPHK’s Portion.  In response to the requests for documents, other than those produced, Mr Che stated that P & T was unable to provide anything further “because it is not in possession of any of such requested documents”.  At the end of the affirmation, Mr Che stated that other than what was disclosed, P & T “does not have any further documents or information which are in [its] possession, custody or power that could be provided in response to the requests”.

13.  On 12 October 2020, the Liquidators filed an affirmation in which they accepted that paragraph 1(i)  and (ii)  of Schedule A and paragraphs 1, 2(i)  and (ii)  of Schedule B were answered, but maintained that certain information and documents were still outstanding under paragraphs 1(iii)  and 2 of Schedule A and paragraphs 2(iii)  and 3 of Schedule B.

14.  Shortly before the hearing of the summons, on 21 December 2020, Mr Che made a second affirmation reiterating that P & T did not have any further information or documents which could be provided in answer to the requests.  He said that in or around June 2018, the persons involved in handling the execution of the Five-Party Agreement were 2 directors, Mr Yip and Mr Lui, who had left P & T on 1 April 2019 and 1 April 2020 respectively.  Mr Che said that apart from them, he believed that none of the existing employees of P & T had any relevant knowledge.

Section 286B

15.  Section 286B(1)  provides as follows:

“ (1)  At any time after the occurrence of an event specified in subsection (3)  in respect of a company, the court may require by order any of the persons specified in subsection (4)  to do one or more of the following—

(a)  attend before the court;

(b)  be examined under section 286C;

(c)  submit to the court an affidavit containing either or both of the following—

(i)  an account of the person’s dealings with the company;

(ii)  information concerning the promotion, formation, trade, dealings, affairs or property of the company;

(d)  produce any books and papers in the person’s custody or power relating to the company or the promotion, formation, trade, dealings, affairs or property of the company.

(2)  The court may make an order under subsection (1)  of its own motion or on the application of—

(a)  the provisional liquidator or liquidator of the company; or

(b)  in the case of a winding up by the court where a winding up order has been made, the Official Receiver as well.

(3)  An event specified for subsection (1)  is—

(a)  the appointment of a provisional liquidator;

(b)  the making of a winding-up order; or

(c)  the commencement of voluntary winding up.

(4)  The persons who may be subject to an order under subsection (1)  are—

(a)  an officer of the company;

(b)  a person known or suspected to have in the person’s possession any property of the company;

(c)  a person supposed to be indebted to the company; and

(d)  a person whom the court thinks capable of giving information concerning the promotion, formation, trade, dealings, affairs or property of the company.”

16.  Section 286B was added to the Companies (Winding Up and Miscellaneous Provisions)  Ordinance (Cap 32)  in 2016, replacing the provision previously found in section 221, though legislative reforms had been recommended as early as in 1998.[4] Among other changes brought about by section 286B, the power to order a person to submit an affidavit to provide information was added.  This is intended to facilitate the liquidator or the Official Receiver to obtain requisite information without incurring the cost of an oral examination and to avoid the need for the person being summoned to be examined in court,[5] though in our view the court should also bear in mind that the requirement to give written evidence on oath can potentially be more onerous than oral examination, depending on the circumstances.

17.  In deciding whether to make an order under section 286B (as in the case with its predecessor section 221), the court must strike a balance between the reasonable requirements of the liquidator in carrying out his functions and the need to avoid making an order that is unreasonable, unnecessary or oppressive to the party from whom the documents or information are sought: Joint & Several Liquidators of Kong Wah Holdings Ltd v Grande Holdings Ltd (2006)  9 HKCFAR 766, §29.  In that case, Lord Millett NPJ, who gave the lead judgment of the Court of Final Appeal, summarised the governing principles as follows (at §30):

“ (1)  The liquidator must show that the documents are reasonably required to enable him to carry out his functions, not that they are necessary to enable him to do so;

(2)  the case for making an order under the section in respect of a former officer is usually stronger than in respect of a stranger who owes no fiduciary duties to the company and who is not under a statutory duty to assist the liquidator;

(3)  there is an element of oppression in requiring a party to provide information which exposes him to potential liability;

(4)  an order for oral examination is likely to be more oppressive than an order to produce documents;

(5)  it is oppressive to require a person suspected of wrongdoing to prove the case against himself on oath prior to proceedings being brought;

(6)  an order is not necessarily oppressive because it is inconvenient for the party subject to it or causes him a lot of work or may make him vulnerable to future claims;

(7)  in the light of the summary nature of the procedure and the need for expedition, the court cannot be expected to indulge in fine judgments as to the precise width of the order which should be made; and

(8)  the court must take care not to cut down the width of the order sought by the liquidator in a way which would risk making it ineffective.”

The judgment below

18.  The Five-Party Agreement allocated an asset of TIPHK to TIPSZ, notwithstanding that the 2 companies had different shareholders and presumably different creditors.  It was on its face a questionable transaction from TIPHK’s point of view, and clause 4.0 shows that even the other parties to the agreement had real concerns.  TIPHK was wound up for insolvency not long after the agreement was entered into.  It was not in dispute, and at the hearing the judge readily acknowledged, that the Liquidators had shown the need for investigation into the Five-Party Agreement and their reasonable requirement for the information and documents sought. 

19.  The judge nevertheless dismissed the summons. His reasoning may be seen from the following passages in his Reasons for Decision handed down on 11 January 2021 (“Decision”):

“ 12. … The Summons seeks an order for the Respondent to submit an affidavit in response to their requests. The Respondents has already provided the Affirmation of Che Kwai Leung Chris. If for some reason the Applicants are dissatisfied with the Respondent’s explanation as to why it is unable to provide further information or documents other than those already provided, the Applicants might consider applying for a private examination of the Respondent’s representative under Section 286B(1)(b)  and 286C of the Ordinance. However, to still ask for an order requiring the Respondent to submit a further affirmation is academic and serves no useful purpose. Mr Lam for the Respondent submitted that the Respondent will simply provide an affirmation which repeats the contents of the Affirmation of Che Kwai Leung Chris. I am of the view that Mr Lam is right.

13. Mr Lau, one of the Applicants, submitted that if this Court makes an order that the Respondent do file an affidavit setting out its knowledge of the Outstanding Items, the Respondent somehow would be able to produce the Outstanding Items. I do not see how that could have happened in view of Mr Lam’s submission and the content of the two affirmations of Mr Che Kwai Leung Chris. Mr Lam is right that if it happens, it would mean that Mr Che lied on oath. There is no evidential basis for this Court to make such a speculation.

…

21.  On the facts of the present case, as confirmed by Mr Lau, the Applicants’ case is not that the ex-directors are still in possession of some documents of the Respondent. There is no evidence to that effect. Indeed, Mr Lau relies on Section 286B(1)(c)(ii)  of the Ordinance and not Section 286B(1)(d)  of the Ordinance to seek information and/or explanations about the transactions that the Applicants are investigating.

22.  Mr Lau has cited no case which shows that the Court can make an order to direct a company to compel its ex-directors to provide information to the Applicants. Further, what if the subject company fails to compel its ex-director to provide such information? It may entail the serious consequence of breaching a court order by the subject company.

23.  On the other hand, Section 286B(4)  does give power to the Applicants to make an application to get information directly from ex-directors of the Respondent.

24.  In the circumstances, I am of the view that discretion should not be exercised to order the Respondent to file an affirmation which it has already filed.  It is up to the Applicants to take further appropriate steps or proceedings in their investigation exercise, whether against the ex-directors or otherwise.”

20.  In the result, the judge dismissed the summons. He ordered P & T to pay the Liquidators the costs from the issuance of the summons up to the filing of the first affirmation of Mr Che, and ordered the Liquidators to pay P & T the costs thereafter.

21.  On 14 September 2021, the judge refused leave to appeal, with written reasons handed down on 29 September 2021 (“Leave Decision”).

The appeal

22.  It is not in dispute that the decision by a judge whether to make an order under section 286B is an exercise of discretionary power, and that the appellate court will not interfere with such a decision unless it is demonstrated that grounds for reviewing the exercise of the discretion exist, such as that the judge has proceeded on erroneous principles: see e.g. Re Allied Weli Development Ltd [2022] HKCA 664, §§22-26 per Kwan VP.

23.  For the reasons below, we are persuaded that there are errors of principle underlying and thus vitiating the decision of the judge, who did not have the benefit of the submissions we heard from leading counsel.  In fact, Mr Lau, one of the Liquidators, appeared in person before the judge without legal representation.

24.  The main point of contention arises from the fact that Mr Che’s two affirmations made in opposition to the application only dealt with the documents he had located in P & T’s possession and the information known to himself.  Thus, in his first affirmation, he referred to “searches and digging” in P & T’s files and said that other than the documents disclosed, P & T was unable to provide any further document “because it is not in possession of any of such requested documents”.  In respect of information, in his second affirmation, after referring to the 2 directors who had left, Mr Che asserted that he “verily believe[d] that none of the existing employees of [P & T] has any personal knowledge of any information in relation to the [requests]”.  The contents of both affirmations of Mr Che were said to be “derived from [his] own knowledge or derived from the knowledge acquired by [him], or the documents made available to [him]”.  Neither affirmation mentioned any inquiry whatsoever made of any present or former director, employee or agent of P & T.

25.  So far as documents are concerned, section 286B(1)(d)  refers in terms to books and papers in the person’s “custody or power”.  The reach of the provision extends therefore beyond documents in the person’s physical custody.  It appears to be common ground that “power” in this context bears the same meaning as in Order 24 of the Rules of the High Court (Cap 4A), i.e. a presently enforceable legal right to obtain the document from the holder without the need to obtain the consent of anyone else, as explained in Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627, 635.  Thus documents held by an agent relating to the principal’s affairs may be regarded as within the power of the principal: Bowstead & Reynolds on Agency (23^rd ed), Art. 50, §§6-090 & 6-093.  By the same token, records (including those in electronic form)  of a company held by a former director may well be documents within the power of the company. This is not disputed by Mr Anson Wong SC who has appeared on behalf of P & T in this appeal (but not below).  Thus emails or other messages received by an employee in the course of employment, even on their own electronic devices, may be documents of which the employer has a right to require production, including after the termination of the employment: Phones 4U Ltd v EE Ltd [2020] EWHC 1921 (Ch)  at §52; [2021] EWCA Civ 116 at §4.

26.  In the section of Mr Che’s first affirmation dealing with documents, he only stated that P & T “is not in possession of any of such requested documents”.[6]  This is not sufficient because it does not cover documents in its power (and does not justify the assertion in the conclusion paragraph of the affirmation that P & T did not have any further documents in its “possession, custody or power”).  There is nothing to show that any inquiries had been made, and nothing to show that there was no document that P & T could recover from its former directors or former agents (such as the Mainland law firm which responded to TIPHK’s queries about the Five-Party Agreement back in September to October 2018).

27.  The judge said it was not the Liquidators’ case that the ex-directors were still in possession of P & T’s documents and that there was no evidence to that effect (§21 of the Decision).  This was a wrong approach.  In the disclosure exercise under an order made, it would be for P & T to find out whether there were documents that existed within its custody or power.  As the Court of Final Appeal said in Kong Wah Holdings Ltd at §§57-61, it is the respondent who knows what documents exist; the liquidator does not.  If a respondent resists an order on the ground that no documents exist in his custody or power, it is for him to satisfy the court this is the case.  For the same reason, there is no merit in Mr Wong’s argument that the summons did not expressly mention the word “power”.  It is clear that the Liquidators were invoking the provisions in section 286B to obtain documents.  An order made would require P & T to produce documents not only within its custody but also its power.

28.  In the present case, as Ms Audrey Eu SC (who appears on behalf of the Liquidators)  points out, basic documents such as P & T’s own notices of meeting, minutes or written resolutions relating to the Five-Party Agreement have not been disclosed.  Nor has any explanation been given as to their existence or whereabouts.  There is no evidence that Mr Che made any inquiry with any present or former employee or director of P & T in preparing his 2 affirmations.  The summons is directed at P & T, not Mr Che, and it is the company’s custody and power over documents that should be the focus of attention.  P & T being a company, the affidavit will of course have to be prepared and made by natural persons.  Thus it may be sworn by a sufficiently senior officer, such as a director.  But it remains an affidavit made on behalf of P & T.  In discovery it is a basic requirement that an affidavit required from a company and made by a proper officer must be based on adequate inquiries.  In the case of a subpoena duces tecum served on a company, the requirement is for the proper officer to make inquiries of the other officers as to the documents and then produce them on behalf of the company: Penn-Texas Corporation v Murat Anstalt (No. 2) [1964] 2 QB 647, 663.

29.  Further, the court has power to require the respondent to account for documents found missing: Joint & Several Liquidators of Kong Wah Holdings Ltd v Grande Holdings Ltd (2006)  9 HKCFAR 766 at §§49-50.  As Recorder Linda Chan SC said in Re Ho Yuk Wah David, a bankrupt [2019] HKCFI 1398 at §30, orders are frequently made by the court under section 286B requiring a respondent to explain on affidavit the whereabouts of documents which were once but are no longer in his custody or power.  This was in fact part of the orders made in Kong Wah Holdings Ltd: see §16.

30.  In the case of information, similarly it should be born in mind that it is the company’s information that is being sought by affidavit (as opposed to by attendance in court for oral examination, as there is real doubt whether a company can be thus examined: see Kong Wah Holdings Ltd, §54).  Whilst the principles and authorities on procedures in an ordinary action should not be unthinkingly transplanted to an application under section 286B (see the cautionary note in Kong Wah Holdings Ltd, §39), what Megarry VC stated in Stanfield Properties Limited v National Westminster Bank plc [1983] 1 WLR 568 at 570H-571B in the context of interrogatories served under rules of court is in our view instructive here:[7]

“ Interrogatories administered to a company have, of course, the special feature that as the company is an artificial person they must be answered not by the litigant but by some human being who holds a position in relation to the company which enables him to give the answers, such as a director, or, here, a liquidator. Yet throughout, the question is not what is known to the individual but what is known to the company. A director or liquidator who answers that he does not know is not answering the question; for the question is what the company knows, not merely what the director or liquidator knows. The person answering the interrogatories is accordingly bound to make all reasonable inquiries which are likely to reveal, or may reveal, what is known to the company.”

31.  The same approach was applied in the context of section 221 (the predecessor of section 286B)  in Kong Wah Holdings Ltd at first instance (HCCW 49/2000, 4 August 2005), where Kwan J said at §61 of her judgment:

“ Mr. Grossman submitted that there had been substantial changes in the shareholdings and management of Toyo since November 2000 and the present management of Toyo has no knowledge of the information and documents sought by the liquidators. I do not think this is a material consideration. The present management can seek the assistance of the employees or the former officers to enable them to comply with the court order.”

32.  In the same vein, in Bruno Arboit as Sole Liquidator of Highfit Development Co Ltd v Koo Siu Ying & another (HCMP 2749/2012, 8 March 2016), in finding the defendants guilty of contempt in failing to comply with a section 221 order, Au-Yeung J criticized them for not making certain inquiries at all or in time: see §66 & 290-301.

33.  In the present case there is nothing to suggest that even if proper inquiries had been made, there would be no further documents or information available.  There was no evidential basis for P & T’s counsel to submit to the judge that a proper affirmation made pursuant to an order under section 286B would simply be the same as Mr Che’s 2 affirmations.  It was therefore erroneous for the judge to accept the assertion that ordering a further affirmation would be academic and serve no useful purpose (see §12 of the Decision).  It was therefore also wrong for the judge to think that the Liquidators’ continued pursuit of the summons necessarily involved an allegation that Mr Che had lied in his 2 affirmations (see §13 of the Decision).  The complaint was not that he lied, but that he had not covered what was required and his answers were too narrow.

34.  It was not argued before us and it is unnecessary to decide whether a company in the position of P & T has an enforceable legal right to require an ex-director to produce to it information concerning its affairs (as opposed to documents in their possession concerning the company). We do not think the Liquidators’ position is that an order made here would require P & T to go so far as to commence legal proceedings against its ex-directors to obtain information.  What is notable for present purposes is that there is no evidence or even suggestion that any ex-employee or ex-director such as Mr Yip and Mr Lui (the latter having left only on 1 April 2020, shortly before the Liquidators’ requests)  could no longer be located or had refused or would refuse to cooperate with P & T by providing any information he might have.  Requiring P & T to approach them first for information and documents is a sensible and economical way of proceeding.  The judge ought not to have taken into consideration, at this stage, the legal difficulty for P & T to compel them to give information or the possibility of the Liquidators themselves applying for an order under section 286B directly against those individuals (see §§22-23 of the Decision, and §12 of the Leave Decision).

35.  Another reason given by the judge for rejecting the application so far as documents are concerned, is that the Liquidators only relied on section 286B(1)(c)(ii)  to seek information and explanation and not section 286B(1)(d)  for documents to be produced (see §21 of the Decision and §§5-10 of the Leave Decision).  We do not think this is a correct view of the scope of the application.  The summons refers to section 286B without specifying any subsections or paragraphs.  Whilst the summons seeks an order for an affidavit, Schedule B is expressly headed “Documents to be produced by the Respondent”.  In the pre-summons correspondence, the Liquidators sought both information and documents from P & T.  In the supporting affirmation, section 286B(1)-(4)  was quoted, with both paragraphs (c)  and (d)  of section 286B(1)  specifically printed in bold type.  In Mr Che’s first affirmation, P & T responded to the Liquidators’ requests for information and documents separately.  In our view the written materials left one in no doubt that the application was brought to obtain both information and documents.  At the hearing, during the submissions of Mr Lau, confusion crept in as to which particular paragraph of section 286B(1)  was being invoked, but in our view the substance of the application was and remained clearly one for both information and documents.  Even if Mr Lau said only section 286B(1)(c)  was relied on, it seems to have been conceded by P & T that the Liquidators could rely on section 286B(1)(c)  to obtain both information and documents by requiring P & T to submit an affidavit.[8] Section 286B(1)(d)  uses the word “produce” but as explained in Kong Wah Holdings Ltd at §22, the word simply means “hand over” or at least “make available for inspection”.  Mr Wong also accepted before us that documents required to be produced pursuant to section 286B(1)(d)  may be produced through an affidavit; so the fact that the Liquidators sought an affidavit did not preclude the application of section 286B(1)(d).  With respect, it seems to us the judge had misapprehended the scope of the application.

36.  For the above reasons, the judge’s exercise of discretion is vitiated.  This entitles this court to re-exercise the power under section 286B.  There is no dispute the Liquidators still reasonably require the information and documents sought.  There is no suggestion that it would be oppressive or cause any hardship to P & T for it to be required to submit a proper affidavit giving the information and documents sought if possible. 

37.  Mr Wong complained that the Liquidators took a long time to have the appeal heard before this court.  Ms Eu explained in response that after this court granted leave to appeal, an arbitration was commenced against P & T Shanghai as a result of which the Liquidators have recovered part of TIPHK’s Portion, and that this has taken up time.  We have misgivings about the Liquidators’ delay in prosecuting this appeal but in all the circumstances, given in particular that there is no suggestion that the delay has either detracted from the Liquidators’ requirement for the information and documents or rendered it oppressive or impractical for an order to be made now, we consider it just and appropriate to make the order sought.

38.  The appeal is therefore allowed and the judge’s order set aside.  There will be an order that P & T do within 28 days submit to the court an affidavit containing the information as set out in Items 1(iii)  and 2 of Schedule A and producing the documents as set out in Items 2(iii)  and 3 of Schedule B to the summons.  We also make an order nisi that P & T do pay the Liquidators’ costs both here and below.