YUNG YUEN LING ALICE v. WONG MING KAN MICHEAL

HCA 231/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 231 OF 2004

____________

____________

_______________

J U D G M E N T

_______________

1.  There were originally four summonses before me, one of the plaintiff and three of the defendant.  That of the plaintiff sought that payments made out of assets subject to a Mareva injunction be varied, in an unspecified manner, or dispensed with whilst one of the summonses of the defendant sought that the Mareva injunction be discharged.  The remaining two summonses of the defendant related to the payment to the Director of Legal Aid, out of the affected assets, of costs which the defendant was ordered to pay and to discovery.

2.  When this matter came before me on 1 November 2006 I made orders in respect of all except the summons relating to discovery.  In that regard I heard argument: with the agreement of counsel the matter was adjourned until today for judgment.

3.  The parties are husband and wife albeit that there are simultaneous proceedings in the family court in which the defendant is the petitioner for dissolution of the marriage.

4.  There are, in truth, only two issues in this action: did the Defendant give certain moneys as gifts to the plaintiff?  If so, why did she transfer those moneys back to him, together with moneys of her own?  There is no dispute that he caused payments to be made to her nor that, thereafter, she transferred moneys to him.  The amount now in dispute is a little over USD1,900,000.00: those moneys are in two accounts of the defendant, subject to the Mareva injunction.

5.  The essence of the plaintiff’s case is that the moneys concerned were gifts to her by the defendant which was evidenced by the existence of certain deeds of gift or confirmation: she transferred the moneys back to him, together with her own additional moneys, because of his undue influence and/or misrepresentations. 

6.  The defendant says, in short, that the moneys which he transferred to her were always intended to be held by her on his behalf; that the deeds of gift or confirmation were never intended to be other than a sham - a somewhat uncommon proposition coming from a solicitor; that the retransfer to him of those moneys together with the surrender by her of the deeds of gift and confirmation was mere recognition of this fact by the plaintiff; and that the transfer to him of her own additional moneys was to provide protection to her during possible police inquiries into the activities of her former employer.

7.  Ms Wee who appeared for the defendant has prepared a helpful chronology from which it may be seen that the plaintiff was admitted to hospital in December 2005 where, apparently, she remains.  All that is before the court in regard to her present condition are the bald assertions contained in paragraphs 2 and 3 of the affirmation of LI Chi-keung, who has been appointed by the Official Solicitor to act on her behalf.  Taking those at face value the reason the plaintiff was admitted to the psychiatric ward of Kwai Chung Hospital was her unstable mental state and a suicide attempt.  After admission she remained mute for a number of months.  She is diagnosed as having depression with dissociated symptoms and has been certified to be mentally incapacitated under the Mental Health Ordinance and incapable of managing and administering her property and affairs.

The discovery summons

8.  There are five specific aspects to the discovery summons, which may effectively be dealt with in three groups.  Firstly, the defendant seeks a further and better list to include the documents which the plaintiff disclosed as exhibit AY-3.  No reference is made to those documents in her original list: plainly a further and better list should be filed in respect of those documents.

9.  The defendant seeks specific discovery in respect of statements which the plaintiff made to the police in connection with an investigation into a person at Pacific Asia Group as reflected in item 1(a) of the schedule to the defendant’s summons (“the schedule”) and in respect of documents relating to her application for permanent residence in Singapore as reflected in item 2 of the schedule.

10.  The defendant relies upon the well-known test in The Compagnie Financiere et Commerciale du Pacifique v The Peruvian Guano Company  (1882) 11 QB 55. The principle is well known and I would not normally repeat what Brett, L.J., said at 62/63 but I feel it appropriate to do so in this matter because of the further view that I take:

“... what are the documents which are documents relating to any matter in question in the action?  I think it obvious from the use of these terms that the documents to be produced are not confined to those, which would be evidence either to prove or to disprove any matter in question in the action; it seems to me that every document relates to the matters in question in the action, which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may - not which must - either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary.  I have put in the words “either directly or indirectly” because, as it seems to me, a document can properly be said to contain information which may enable a party requiring the affidavit either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a train of inquiry, which may have either of these two consequences: the question upon a summons for a further affidavit is whether the party issuing it can shew... that the party swearing the first affidavit has not set out all the documents falling within the definition.”

11.  In O Company v M Company [1996] 2 Lloyd’s Rep. 347 Colman, J., observed at 351/352

“The principle was never intended to justify demands for disclosure of documents at the far end of the spectrum of materiality which on the face of it were unrelated to the pleaded case of the plaintiff or defendant and which were required for purely speculative investigation.  That formulation must not, in my judgment, be understood as justifying discovery demands which would involve parties to civil litigation being required to turn out the contents of their filing systems as if under criminal investigation merely on the off chance that something might show up from which some relatively weak inference prejudicial to the case of the disclosing party might be drawn.  On the contrary, the document or class of documents must be shown by the applicant to offer a real probability of evidential materiality in the sense that it must be a document or class of documents which in the ordinary way can be expected to yield information of substantial evidential materiality to the pleaded claim and the defence to it in the broad sense which I have explained.  If the document or class cannot be demonstrated to be clearly connected to the issues which have already been raised on the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings, if sufficient information were available, the application should be dismissed.”    [Emphasis supplied]

12.  That approach was adopted in this jurisdiction by Findlay, J. in A v B (action number withheld), 19th of May 1998.

13.  In Annabell Kin Yee Lee and Others v Lee Wing Kim (May Lee) and another HCAP5/2003, unreported, Chu, J., indicated that the defendants opposed the application principally on the basis that the plaintiffs had failed to show the relevance of the documents.  She set out the principles underlying an Order 24, Rule 7 application culled from Berkeley Administration Inc & Others v McCelland & Others [1990] FSR 381 and went on to observe

“It is not the purpose of discovery to give the plaintiffs an opportunity to hunt around the documents in the hope that they will reveal some improprieties on the defendants plant or will provide information for them to pursue more inquiries.” 

14.  In my judgment bearing in mind the true nature of the dispute between the plaintiff and the defendant as earlier summarised, none of the documents sought in this category has been demonstrated to be clearly connected to the issues which have already been raised on the pleadings or which would in the ordinary way be expected to be raised in the course of the proceedings. 

15.  The issue in regard to what the plaintiff may or may not have said to the police in connection with their investigation has no relevance to any advice or misrepresentations which may have been given to her by the defendant: similarly, what the plaintiff may or may not have said in her application for permanent residence in Singapore again has no relevance as to whether she made that application at the behest, as she says, of the defendant or of her own volition.

16.  Thirdly, the defendant seeks specific discovery in regard to documents related to the complaint made by the plaintiff to the police alleging theft on the part of the defendant as reflected in item 1(b) of the schedule; documents relating to various banking transactions as listed in item 3(d), (e) and (f) of the schedule; and documents relating to the medical treatment sought by the plaintiff in about January 2004.

17.  Applying the principles which I have set out I am satisfied that each of these classes of documents has been demonstrated to be clearly connected to issues already raised on the pleadings.  The statements or documents made available to the police are obviously of immediate relevance to the allegations made by the plaintiff in these proceedings; the banking transactions form a part of the plaintiff’s specific allegations regarding the conduct of the defendant; in view of her subsequent health conditions, the plaintiff’s medical condition in January 2004 is of clear relevance in regard to the events occurring between her and the defendant at that time.

18.  In the circumstances there will be an order in terms of paragraphs 1 and 2 and in terms of paragraph 3 in respect of the items set out in Items 1(b), 3(d), (e) and (f) in the schedule, of the defendant’s amended summons dated 30 November 2005. I direct that there be compliance with this order within 21 days. 

19.  The defendant having been substantially successful, there will also be an order in terms of paragraph 4 of the summons.