XCHRX CAC BRAKE CO. LTD. ZHUHAI v. LIANG JIN WEN AND OTHERS

HCA004666A/1997

HCA 4666/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 4666 OF 1997

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J U D G M E N T

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1. This is an application by the Plaintiff for specific discovery under O.24, r.7, Rules of the High Court.

2. The 2nd Defendant was charged and convicted in the District Court in January of this year in respect of four charges of furnishing false information under the Theft Ordinance. He was sentenced to four years' imprisonment on 8th February 1999. The subject-matter of the criminal charges is relevant to the civil proceedings brought by the Plaintiff against the 2nd, 3rd and the 4th Defendants and the other Defendants in this action.

3. The Plaintiff brings this action against the Defendants for conspiracy to defraud and for fraud in respect of monies obtained under letters of credit issued against production of false contracts. It is alleged that the 2nd, 3rd and 4th Defendants with other Defendants conspired and arranged for the false documents to be produced to prove the bona fides of the underlying transactions under which letters of credit were issued and monies obtained thereunder.

4. In his plea in mitigation on behalf of the 2nd Defendant at the sentencing in the District Court, counsel then appearing for the 2nd Defendant read out a statement which he informed the court had been prepared by the 2nd Defendant in conjunction with his solicitors. The evidence shows that counsel appeared to paraphrase some parts of the statement and commented on occasions.

In the statement that was read out to the court, the 2nd Defendant admitted inter alia:

5. Parts of the statement having been read out in open court, it is well established that, even if the document had been confidential up to then, by reading it out in open court confidentiality is lost once and for all. No further question of privilege arises. (Style and Hollander on Documentary Evidence 6th Ed. (1997) at p.223-4)

6. As privilege in respect of part of the document has been waived, it appears to me that the whole document is discoverable. It relates to the subject-matter of the action and is discoverable. I am satisfied that the document is necessary for production under O.24, r.7 and I make an order in terms of the summons dated 15th February 1999.

7. I order that the 2nd, 3rd and 4th Defendants pay the Plaintiff costs of the application to be taxed on a party and party basis and to be paid forthwith.

Representation: