LUI YAU TAK AND ANOTHER v. MELOFIELD NURSERY AND LANDSCAPE CONTRACTOR LTD

HCMP 312/2024

[2025] HKCFI 6229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 312 OF 2024

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D E C I S I O N

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1.  This is the 2^nd Plaintiff’s application under RHC O.45 r.6 for an order that the Defendant shall comply with paragraphs 1 and 2 of the Order of Mr Recorder Suen SC dated 17 March 2025 (“the Order”) within 28 days, and that a penal notice be indorsed on the order to be made.

2.  Under paragraph 1 of the Order, the Defendant should provide to the 2^nd Plaintiff those accounting records of the Defendant as particularised in the Schedule annexed to the Order (“the Accounting Records”) for the 2^nd Plaintiff’s inspection within 28 days of the date of the Order and without charge.

3.  The 2^nd Plaintiff contends that he visited the Defendant’s office on 14 April 2025 for the purpose of inspecting the Accounting Records.  According to him, he was taken into a room with a photocopying machine, in which only part of the documents from the Accounting Records were put on the shelves for his inspection.  He claims that he was not provided with all the Accounting Documents, and was not told the whereabouts of the other documents to which he was entitled to inspect.

4.  The Defendant disputes the 2^nd Plaintiff’s version of facts.  In particular, an affirmation has now been filed by a director of the Defendant to contend that the Defendant lost a USB hard drive in November 2024 which contained the Defendant’s accounting records for the years 2020 to 2021, 2021 to 2022 and part of 2022 to 2023 (“the Allegedly Lost Documents”).  The Defendant claims that it was because of this loss that the Defendant did not have such documents in its possession and could not provide them to the 2^nd Plaintiff during the inspection.

5.  This court is unable to resolve the disputes of facts on the basis of the affidavit evidence.  However, what is clear is that the 2^nd Plaintiff was not able to inspect the Allegedly Lost Documents during his inspection.  It appears to be common ground that the Defendant did not raise the issue regarding the Allegedly Lost Documents before the learned Recorder during the substantive hearing of the Originating Summons.  This is also consistent with the terms of the Schedule to the Order, which refers to the Defendant’s accounting records from 1 October 2020 to the date of the Order.  There is no explanation from the Defendant as to why the issue was never mentioned hitherto until now.  I reject the Defendant’s submission that the Order intended that the Defendant would not need to produce to the 2^nd Plaintiff for his inspection of the documents which are now claimed to have been lost. 

6.  Accordingly, I am of the view that the Defendant has not fully complied with paragraph 1 of the Order.

7.  Under paragraph 2 of the Order, the Defendant should provide, or allow the 2^nd Plaintiff to make, copies of the Accounting Records without charge if the 2^nd Plaintiff so request within 28 days of the date of such request.

8.  There is a dispute about how this paragraph should be understood.  The Defendant submits that the paragraph means that “once [the 2^nd Plaintiff] requests copies of such accounting records, it is at the [Defendant’s] election as to whether to provide such copies to [the 2^nd Plaintiff], or to allow [the 2^nd Plaintiff] to make copies of the same, without charge”. 

9.  I reject this submission. 

(1)  Paragraphs 1 and 2 of the Order were derived from paragraphs 3 and 4 of the Originating Summons, which were based on section 740 of the Companies Ordinance (Cap 622). This was also recognised by the learned Recorder in [1] of his Decision [2025] HKCFI 1037.

(2)  Paragraph 2 of the Order unequivocally provides that the 2^nd Plaintiff may make a request.  In my view, the request may relate to (a) the Defendant’s provision of copies of documents, or (b) the Defendant’s giving of permission for the 2^nd Plaintiff to make copies of the documents. 

(3)  It seems to me that the Defendant’s argument (that it is for the Defendant to decide on the mode of copying) is contrary to the spirit of the Order.  The 2^nd Plaintiff had to come to court to get a court order so that he can obtain copies of the Accounting Records.  Once the 2^nd Plaintiff makes a request for copies of the documents, it could not have been the court’s intention to leave him at the Defendant’s mercy and for the Defendant to decide on how the copying is to be done. 

10.  There is no dispute between the parties that the 2^nd Plaintiff handed a written request to a director of the Defendant on 14 April 2025 to require the provision of copies of the Accounting Records within 28 days.  None has been provided to the 2^nd Plaintiff even at the time of this hearing.  It is clear to me that the Defendant has refused to comply with paragraph 2 of the Order.

11.  For the above reasons, I am satisfied that this is an appropriate case to make an order under RHC O.45 r.6 to require the Defendant to comply with paragraphs 1 and 2 of the Order within 28 days. 

12.  I make an order in terms of paragraphs 1 and 2 of the 2^nd Plaintiff’s summons dated 6 June 2025.

13.  I will now hear the parties on costs.

[Submissions on costs]

14.  I order that the costs of and occasioned by the 2^nd Plaintiff’s summons dated 6 June 2025 are to be paid by the Defendant to the 2^nd Plaintiff, to be taxed if not agreed.