XCHRX HSBC INTERNATIONAL TRUSTEE LTD. v. ROBERT HUNG NGAI HO AND ANOTHER

HCMP953/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.953 OF 2001

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J U D G M E N T

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1. This is the application by the 1st respondent against the 2nd respondent for three categories of discovery : the first category of discovery sought is what is called tax advice documents given to the 2nd respondent; the second category of document is what are said to be the documents that had been promised in correspondence but had not forthcoming; and the third category of discovery sought is what are called the Rokin documents. I can dispose of the second and third discoveries sought fairly quickly before I turn to the much more controversial first category of discovery.

2. In relation to the second category of documents sought, i.e. the promised documents, a bundle had been given yesterday afternoon by the 2nd respondent's solicitors to the 1st respondent's solicitors. Although Mr Shieh says they have not had a full chance to study them carefully to make sure that they have complied with what had been promised, I think there is a possibility for them to come back if one or two document is found missing. So that matter is really disposed of.

3. The third category of documents, i.e. the Rokin documents, are documents relating to the Rokin Trust, said to be created under the Will of the father, i.e. of General Ho. It has got nothing to do with the Will of the grandfather, the subject matter of this present action. It seems to me that there is simply no basis for discovery of the Rokin documents. It has got nothing to do with this case although they have been mentioned as a background in the affidavit of the 2nd respondent.

4. So far as the first category of document, i.e. the tax advice document discovery, is concerned, I have heard the very able argument of Mr Shieh. This is a matter of some history. But I think I can say at this stage quite confidently that this is the wrong time for the court to be making any such order. The order that had been made by Woolley DJ was there would be a filing of affidavits in June by the 2nd respondent (which had been done) and I think on 28 September by the 1st respondent, with a timetable also for the affidavit in reply by the applicant. It seems to me that in advance of the 1st respondent filing the affidavit, or even in advance of the applicant filing the affidavit in reply, or in advance of any proper directions of the court as to the future progress of the trial, or in the proper identification of issues, it would be wholly premature at this stage to order the specific discovery of the so-called tax advice given by the tax advisors to the 2nd respondent in relation to what the matter giving rise to the Newhugh Inequity. At the moment, I am not convinced that these documents will be necessary or crucial in the issues at the trial of the action and specific discovery will only be ordered if the court takes the view that they are necessary for the fair disposal of the cause or matter. I think that it is much too early at this stage for this discovery to be made. So, on that basis alone, without even going to the question of privilege or waiver of privilege, this discovery application must fail.

5. It follows, therefore, that the summons should be dismissed with the proviso that the 1st respondent can come back to the court if, in relation to the promised documents given (that is the bundle I would have been given), it is found that any particular document ought to be forthcoming. Then in such a case the 1st defendant can take out a summons for the specific discovery of that particular documentation.

6. So far as costs is concerned, it seems to me that although the documentation had come in, that is under the promised documents category, a little bit late in the day, there is never being any issue on the agreement or willingness of the 2nd respondent to give those documents. These documents are of some vintage and they had to be put together, and there was really no serious contest to that part of the summons. Whatever costs might have been incurred would have been nominal, and therefore, I do not think that aspect should in any way affect the costs outcome of this summons.

7. My Order, therefore, is that the summons should be dismissed with costs to the 2nd respondent against the 1st respondent.