BRUCE JAMES STINSON v. GU MING GAO AND ANOTHER

HCA 2352/2012 and HCA 851/2018

[2024] HKCFI 171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2352 OF 2012 and 851 OF 2018

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D E C I S I O N

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Introduction and Brief Background

1.  A brief background of the case of the Plaintiff (“P”) against the 1^st Defendant (“D1”) in HCA 2352/2012 can be found in the judgment of the Court of Appeal in Bruce James Stinson v Gu Ming Gao (unrep) CACV 61/2017, 12 January 2018, §§3-6 which I gratefully adopt and do not repeat herein.

2.  In HCA 851/2018, P alleges that the 2^nd Defendant (“D2”) had assisted D1 to act in breach of the Agreement between P and D1 and D1’s duty of good faith as partner of the Partnership Business.

3.  By the order of Master H Au-Yeung dated 6 September 2019, HCA 2352/2012 and HCA 851/2018 were consolidated.

4.  This is an application by D1 and D2 (collectively “Ds”) by Summons dated 9 March 2023 (“the Summons”) seeking an order for P:

(1)  to make an affidavit stating whether the documents listed in the Schedule are, or have any time been, in P’s possession, custody or power, if the same have been but are no longer in P’s possession custody or power, to state in the affidavit when he parted with the same and what have become of the same; and

(2)  to produce the documents listed in the Schedule.

5.  The Schedule to the Summons contains 23 Items which Mr Lam, counsel for Ds, have grouped into 5 categories in his skeleton submissions:

(A)  Betting statements:

(1)  Betting records/account statements with the Hong Kong Jockey Club (“HKJC”) for various periods in 2021 and 2022 under the account names of Lam Shiu May, Wong Yuk Yee Winky, Shing Wai Yin Fiona, Liu Chi Hong, Chan Pak Ho Eddie, Chan Kit Yee, Wong Lai Yi and Chan Wing Lam (Items 9 to 16);

(2)  Betting records/account statements with HKJC in relation to the betting account of P (Item 17);

(3)  Betting records/account statements with HKJC in relation to the betting account of Peter Wong (Item 18);

(4)  Betting records/account statements with HKJC in relation to the person named “Nancy”, which account was, as revealed in item 47 of P’s 2^nd Supplemental List of Documents filed on 21 April 2022, used in the racing seasons 2007/2008 and 2008/2009 (Item 19);

(B)  Income documents:

(5)  Bank statements, accounting records and/or book of accounts relating to the Partnership Business (Item 1);

(6)  Records in relation to the use of each and any of the betting account(s) referred to in (1)-(4) above by, for or on behalf of the Partnership Business including records which show that funds of the Partnership Business were transferred to and from these accounts (Item 20);

(C)  Expenses documents:

(7)  Records relating to where the betting funds under the Partnership Business were held and how they were disposed of (ie bank statements, accounts, cheques) (Item 4);

(8)  Records relating to the employment or hiring of those persons working or involved in the Partnership Business other than parties to the captioned action, including but not limited to those persons named “Peter”, “Stella”, “Isabella”, “Lydia”, “Wing”, “Eddy”/ “Eddie”, “Winkie”/“Winky” and “Mimi” and such other persons whose betting accounts were used for the Partnership Business (collectively the “Persons Involved”) (Item 6);

(9)  Records relating to the employment related payments (eg bank statements, pay slips, cheques) of salaries, bonuses, share of profits and/or MPF contributions to any of the Persons Involved (Item 8);

(10)  Rent payment receipts regarding premises used for the Partnership Business covering the following periods (Item 21):

(a)  1 April 2007 – 30 April 2007;

(b)  1 November 2007 – 31 December 2007;

(c)  1 February 2008 – 31 March 2009;

(d)  1 July 2009 – 6 September 2009;

(e)  1 August 2010 – 6 September 2010; and

(f)  1 September 2011 – 6 September 2011;

(11)  Other records of expenses incurred by the Partnership Business (Item 22);

(12)  Records in relation to the arrangement that the Partnership Business had agreed to satisfy the costs and expenses incurred by P’s two companies referred to in P’s 7^th Affirmation filed on 1 August 2014 (“P 7^th”) ie Alpha-Eight Institute Limited (“Alpha Eight”) and Chilab Limited (“Chilab”) (Item 23);

(D)  Agreements with Third Parties:

(13)  All relevant records or details of the “handshake agreements” as referred to in paragraph 16 of P 7^th, including the names and identities of the other party(ies) to the agreements, amount involved, dates of transactions and the terms of the agreements (Item 5);

(14)  All other contracts or records purportedly made in the name of, or on behalf of the Partnership Business with third parties, including but not limited to the Persons Involved (Item 7);

(E)  Records of Profit Sharing:

(15)  Records relating to the payment of the contributions to the betting funds under the Partnership Business by investors and/or creditors (eg bank statements, cheques) (Item 2);

(16)  Records relating to payment of betting proceeds or dividends under the Partnership Business to investors and/or creditors (eg bank statements, cheques) (Item 3); and

(17)  Records relating to where the betting funds under the Partnership Businesses were held and how they were disposed of (eg bank statements, cheques) (Item 4).

6.  For convenience, I will consider the present application under those categories and in that order although at the hearing before me not all those items under those categories were pursued by Mr Lam.

7.  In support of the Summons, Ds have filed the 1^st Affirmation of Ho Quen Thai Christopher (“Ho”) on 9 March 2023 (“Ho 1^st”), 2^nd Affirmation of Ho on 8 May 2023 (“Ho 2^nd”) and 3^rd Affirmation of Ho on 10 November 2023 (“Ho 3^rd”). In opposition to the Summons, P has filed the 17^th Affirmation of Bruce James Stinson on 21 June 2023 (“P 17^th”).

Analysis

8.  Mr Yan SC (leading Mr Wong), counsel for P, submitted that the present application is misconceived and should be dismissed in limine because, as confirmed in Ho 1^st, all the documents listed in the Schedule fall within the scope of documents that P had been ordered to disclosure by Deputy High Court Judge Seagroatt (as he then was) by an Order made on 19 June 2014 (“the 2014 Order”) following the hearing of an application for specific discovery by D1 made 9 years ago (see Ho 1^st, §§17-18). That application was based on O 24, r 7 RHC and the Partnership Ordinance, as was confirmed by senior counsel for D1 during the hearing before the learned Judge, which are also relied upon in this application as stated in the margin of the Summons. Indeed, in Ho 1^st, §18, it was explicitly stated that the documents now sought under the present application have already been considered and decided by the learned judge as disclosable.

9.  Ds have stated that the reason why this application is taken out is because P had not duly complied with the 2014 Order and the application is necessary to compel its full and proper compliance. However, even if P has failed to fully comply with the 2014 Order, the proper course is to enforce the 2014 Order, instead of making a fresh specific discovery application seeking the same relief when the court has already ruled on the matter and made the 2014 Order.

10.  Furthermore, at the CMC hearing in February 2022, D1’s legal representative told Master Phoebe Man that he was not pursuing the non-compliance with the 2014 Order and “it does not really affect the crux of the case”.

11.  Although Mr Lam relied on O 24, r 16 RHC, which was not stated in the margin of the Summons, as an additional basis for this Court to make a fresh or further order for specific discovery and submitted that if there is further non-compliance by P, Ds could then take steps to enforce the Court orders, I am not satisfied that the further order of this Court is necessary in so far as enforcement of the 2014 Order is concerned or that O 24, r 16 is the proper basis to seek the orders sought by the Summons.

12.  I agree with Mr Yan SC that in so far as this Court is being asked to make again an order for discovery of documents already covered by the 2014 Order, the specific discovery of documents sought plainly is not “necessary either for disposing fairly of the cause or matter or for saving costs” within the meaning under O 24, r 8 RHC. Furthermore, it would only unnecessarily increase the costs and waste the Court’s and parties’ time, contrary to the CJR objectives, which I am obliged to give effect to when exercising the powers under O 24 and in the interpretation of the provisions of O 24: see Billion Lead Investment Ltd v Union Joyce Ltd (unrep) HCMP 2145/2011, 14 December 2012 per Mimmie Chan J, §8.

13.  That said, from Mr Lam’s oral submissions, it is made clear what Ds are seeking is an order for specific discovery of more specifically defined documents or classes of documents which are not identical to the wording of the 2004 Order. Given some dispute over whether some of those documents now sought are covered by the 2014 Order (which on its face is plainly more broadly worded than the orders sought as indicated by Mr Lam at the hearing), I take the view that there may be some utility or necessity to make further orders for specific discovery and production of those more specifically defined categories of documents, provided Ds satisfy their burden to demonstrate that the 3 pre-requisites for jurisdiction exist, ie a prima facie case of existence, that P has or had the document in his possession, custody or power and the document or class of documents relates to a matter in question in this action (“the 3 pre-requisites”). If so, then the burden would be on P to show discovery is not necessary to dispose fairly of the matter or for saving costs.

14.  Furthermore, given that there has already been disclosure of documents and 2 affirmations have been filed by P in 2014 and 2015 pursuant to the 2014 Order, and P 17^th has been filed in opposing the Summons, Ds have a heavy burden to satisfy me, “not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by [that party], or by any admission by him in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state”: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887, §51. See also: Re Prudential Enterprises Ltd (unrep) HCCW 594/1999, 10 August 2001, §7 and Hong Kong Civil Procedure 2024, Vol 1, §§24/3/7 and 24/7/1.

15.  Thus if P has answered already on oath that the documents sought have not been in his possession, custody or power, that is conclusive unless by any documents produced or admission by him or necessarily from the circumstances of the case, I am satisfied the affirmation does not truly state what it ought to state. There is no utility or necessity to order him again to make an affirmation stating what he already stated on oath once, if not, twice.

16.  Pursuant to the 2014 Order, P had disclosed a number of documents and had filed 2 affirmations to explain the unavailability of other documents in 2014 and 2015:

(1)  In P 7^th, filed on 1 August 2014, exhibited therein a List of Documents (“the List”):

(i)  P said on oath that he has asked the people whose betting accounts were used to give him consent and he obtained the betting records from HKJC which were then disclosed to D’s solicitor by letter dated 29 July 2014. The only betting statement he was unable to obtain was Peter Wong who was asked to leave the operation due to security breach in 2010. Apart from those betting records produced, he confirmed that he did not have in his possession, custody or power other betting statement or records of HKJC;

(ii)  He also stated that documents in his possession, custody and power relating to the costs and expenses of running the betting operation under the Agreement are listed in the List (items 16 to 23) but he has not kept a full set of documents relating to those costs and expenses. He explained that the profit share was based on gross profits without any deduction of the costs and expenses which P paid as was agreed in the Partnership Agreement;

(iii)  He also stated that the people who worked with the Partnership were not employees and were not paid salaries. There were no employment contracts save for Xiong Li Ying, where an employment contract was entered into with Alpha Eight, and Lam Yuk Fai, who was employed under Chilab. Both Alpha Eight and Chilab were P’s own companies carrying on separate businesses. As for members on P’s management team, they would be paid a monthly retainer by P to be accounted for when their share of profit was calculated at the end of the season;

(iv)  The List also disclosed a number of written agreement between P and individuals who put money into the betting pool under the Agreement. He confirmed that he did not have in his possession, custody or power any other written agreements made in the name or on behalf of the Partnership Business;

(v)  He also stated that there was never more than a handful of people who had contributed to the betting pool and hence the calculation was quite simple. He made the calculations and although they were written down on papers initially, they were not kept as records. He further said he was not in possession, custody or power of any statement and records of how profit were shared with any third parties putting money in the betting capital under the Partnership Business.

(2)  After issues were raised that some betting records were missed out, the 12^th Affirmation of Bruce James Stinson was filed on 14 April 2015 (“P 12^th”):

(i)  P explained therein he previously inadvertently missed out the records of betting conducted by the Partnership on 15 June 2012 and also records of betting conducted by the Partnership using the account of Wong Yuk Yee Winky in the 2011/2012 racing season. Soon after he discovered the mistakes, by letter dated 30 March 2015, P’s former solicitors informed D1 that P was in the process of obtaining such missing betting records from HKJC. The letter also mentioned that P has never been able to get the consent of Peter Wong since he was dismissed. The missing records were subsequently obtained and provided on 14 April 2015; and

(ii)  P explained the reasons for the unavailability of the periods of records in the accounts being there were no betting activities on behalf of the Partnership during those periods and for the periods before 25 June 2007, they were beyond the 7 years record that HKJC could provide.

17.  Further, in opposing the Summons, P stated inter alia in P 17^th that in September 2014, P did attend HSBC to ask whether he could retrieve bank statements of his previous account which had already been closed for several years by that time. The counter staff whom P spoke to responded affirmatively. He therefore instructed P’s former solicitors to inform D1’s former solicitors that the bank statements would be provided to them by letter dated 19 September 2014. However, when P went back to HSBC to apply for the statements, he was told by another staff that the statements could not be made available to him. It was only after issuance of the Summons, upon counsel’s advice and given the conflicting responses from HSBC staff, he went to HSBC to make enquiry again and was told it was possible to obtain the records. Hence he made a request to the bank on 23 May 2023 and disclosed by letter to Ds’ solicitors on 20 June 2023 the statements he received from HSBC.

18.  Mr Yan SC also submitted that HSBC had provided the statements relating to P’s personal bank account and credit cards rather than the statement of P’s account used for the Partnership Business notwithstanding P wrote to HSBC seeking the statements for the account used for the Partnership. When the statements were provided by HSBC, P’s solicitors immediately sent them to Ds’ solicitors without checking them. Mr Yan SC also confirmed that these statements will be disclosed and that P could make an affirmation to explain all this but as P’s mother had just passed away no affirmation could be produced before the hearing.

19.  In light of what P has stated on oath and/or is prepared to say on oath, I now turn to the specific categories of documents pursued by Mr Lam at the hearing before me.

Category A

20.  Firstly, as confirmed by Mr Lam, Ds are seeking specific discovery of all betting statements for various periods in 2021 and 2022 of 10 individuals, including P, even if there was no betting activity conducted by them on behalf of the Partnership. From my summary of what has been stated in P’s affirmations above, it can be seen that P has already said on oath that he has disclosed all the relevant accounts maintained with HKJC used for horse betting activities on behalf of the Partnership Business and the unavailability of the betting statements for other periods were because: (a) there were no betting activities on behalf of the Partnership; or (b) they go beyond the 7 years’ record that HKJC could provide.

21.  Mr Lam submitted that properly construed the betting statements even for periods there was no betting activity were within the 2014 Order and would show the inward or outward remittances of the betting proceeds. In any event, if not covered by the 2014 Order, he seeks now those statements.

22.  Mr Yan SC does not agree on that construction of the 2014 Order. In the 2014 Order (subparagraph (ii)(1)), disclosure was ordered for “all statements and records maintained with HKJC from 27 January 2004 to 27 July 2012 in respect of horse betting activities undertaken by individuals on behalf of the Partnership Business. (his emphasis)

23.  He further submitted that it is relevant to have regard to the background to the 2014 Order. According to him, it was P who first sought discovery of the betting statements from D1 in order to do a comparison between the betting done on behalf of the Partnership Business and that by D1 to see if the mathematical model had been used by D1 in breach of the Partnership Agreement. In response, D1 had similarly sought and obtained the betting records of those nominees betting on behalf of the Partnership Business. He submitted that the terms of the 2014 Order in subparagraph (ii)(1) were those as sought by D1. Thus the 2014 Order was never intended to include what happened to the proceeds of the betting but only in respect of the betting activities.

24.  On a plain reading of the 2014 Order, it seems to me that the betting statements in respect of days where no horse betting activities were undertaken are not covered. I therefore need to consider whether Ds have satisfy me there is a prima facie case of the 3 pre-requisites.

25.  Mr Yan SC made the overarching point that, in respect of all betting statements sought now, as HKJC only retains records for the past 7 years, any order of this Court for discovery of the betting statements of HKJC is futile.

26.  On the other hand, Mr Lam took the rather technical point that in resisting this application, it has not been stated in P 17^th that P cannot now (as opposed to in 2014 and 2015 respectively when P 7^th and P 12^th were made) obtain the betting statements from HKJC. However, in light of the general statement in P 7^th that betting records available from HKJC covers 7 years and in Ho 3^rd no serious challenge (by way of assertion or evidence adduced) that what P alleged is not correct or no longer correct, I see no basis for believing otherwise. It is of course Ds who bear the burden of showing a prima facie case that P has the documents sought in his possession, custody or power.

27.  In any event, I am of the view that the betting records disclosed already sufficiently show the profits, if any, generated by the betting activities of the relevant account holders. The inward or outward remittance of the proceeds would not affect the profits or income generated by the betting activities. I would not order disclosure of those betting statements as they are not necessary.

28.  Secondly, Ds seek specific discovery of P’s own betting statements. As already mentioned, the 2014 Order only required P to disclose those betting statements “in respect of betting activities undertaken by individual on behalf of the Partnership Business”.

29.  To the extent that further discovery is now sought of P’s betting statements, I am not satisfied there is a prima facie case that the class of document relates to a matter in question in these actions. D1 has never pleaded or contended that the Partnership had used P’s betting account for placing bets on behalf of the Partnership Business. Furthermore, P has said in P 7^th that although he has a betting account with HKJC, it has never been used for placing bets for the Partnership. Mr Lam has pointed to no documents produced or from P’s affirmation or admissions made by P in his pleadings or necessarily from the circumstances what P said on oath is untrue. Thus what P has said should be conclusive.

30.  Thirdly, Ds seek the betting statements of Peter Wong. In both P 7^th and P 17^th, P has explained why he has not been able to obtain the betting statements of Peter Wong. I agree with Mr Yan SC that simply because the Partnership made use of the account of Peter Wong after his dismissal, but it was never said since his dismissal his consent had been obtained in respect of the betting statements from HKJC, it follows what P said on oath is incredible.

31.  Further, there is no evidentiary basis to suggest, nor has it been suggested, that the betting statements of Peter Wong had been obtained and withheld by P.

32.  In any event, the records of Peter Wong’s betting activities have been disclosed by way of archived data retrieved from the database of the Partnership so the discovery sought is unnecessary.

33.  Accordingly, I would not make any order for the more specific documents now sought by Mr Lam under Category A.

Category B

34.  As mentioned, P has already agreed to provide to Ds the HSBC Bank Account statements in relation to the Partnership Business and are in the process of obtaining them from HSBC. On the undertaking of Mr Yan SC from the bar table that his client is prepared to put on oath what has been stated in P’s skeleton submissions in relation to the mistake in providing the relevant HSBC bank statements and will provide the bank statements once available, I am not satisfied any order is necessary.

35.  Mr Lam further sought the HSBC Joint Account of P and his wife (account no 622-0556550-001) (“the Joint Account”). He submitted that there is no answer to this by way of affirmation or in P’s skeleton submissions even though it was raised in Ho 3^rd, and P has had sufficient time to respond to this. Even upon my further pressing at the hearing, Mr Yan SC has not been able to indicate what his client’s position is in relation to the documents sought. He complained that these documents were only raised in Ho 3^rd and that his client has not had an opportunity to respond. However, Ho 3^rd was filed in November 2023. I do not accept that P has been deprived of the chance to adduce evidence to respond to this.

36.  As invited by Mr Lam, if I am of the view that there is a prima facie case of the 3 pre-requisites then I should make the order for specific discovery of the Joint Account.

37.  In P’s email of 26 February 2005, he asked D1 to temporarily return the HK$1M profit share to the Joint Account. In the absence of any other evidence or submission on behalf of P, I am satisfied of a prima face case that the bank statements of the Joint Account exist, are in the possession, custody or power of P and relate to a matter in question in these actions. I would therefore order specific discovery of the bank statements of the Joint Account for the period from 27 January 2004 to 27 July 2012.

38.  Ds further seek specific discovery of the statements of the nominated bank accounts of the betting account holders. Similarly, P has filed no evidence or made any submission in respect of these documents complaining that this was only raised in Ho 3^rd.

39.  Mr Lam has shown to me various examples from the disclosed betting statements that sums in those betting accounts were withdrawn by autopay and that the Betting Facilities Rules of HKJC require that when a person applies to open a betting account that person should provide particulars of a nominated bank account in the sole name of the betting account holder. However, I am not satisfied of a prima facie case that P has possession, custody or power of the bank statements of the account holders.

40.  Furthermore, as I have already taken the view that the comings and goings from the betting accounts are unnecessary when the betting statements disclosed sufficiently show the profits generated from the betting activities, I would not make any order for specific discovery of these documents as they are unnecessary.

Category C

41.  Firstly, Ds seek specific discovery of the audited financial statements of Chilab and Alpha Eight.

42.  As explained in P 7^th, those companies have their own separate businesses and were only used to pay the monthly remunerations of two individuals of the Modelling Team. I agree with Mr Yan SC that the audited financial statements would unlikely show any specific expenses, such as that paid to one individual as opposed to total expenses/remuneration of all staff.

43.  In any event, in light of what has already been disclosed in the List and given that P has agreed to identify from the HSBC statements, when available, any transfer record relating to the payment of expenses, I am of the view that an order for specific discovery of the audited financial statements of Chilab and Alpha Eight is not necessary.

44.  Secondly, Ds seek specific discovery of statements of P’s credit card used to pay for expenses of the Partnership Business. In Ho 3^rd, §23, it is asserted that it is likely that P’s credit card accounts would contain records of expenses in relation to the Partnership Business given P’s case is he would arrange payment of costs and expenses out of his own pocket. I am not satisfied there is any evidentiary basis for suggesting P’s credit card were used in running the affairs of the Business Partnership. In any event, the 2014 Order already requires disclosure and production of “all bank statements and other records of expenses incurred, in the name of the Plaintiff… in running the affairs of the Partnership Business”. Together with the bank statements already agreed to be provided to Ds, there is no necessity or utility to make a further order.

45.  Thirdly, Ds seek specific discovery of documents relating to the monthly retainer paid to the Management team and how such monthly retainer was paid by P. In light of what has already been disclosed in the List and already stated on oath by P, and given that P has agreed to identify from the HSBC statements when available any transfer record relating to the payment of expenses for or on behalf of the Partnership Business, I am of the view that an order is not necessary.

Category D

46.  Ds seek specific discovery of any agreements with investors from 2004 up to 2008.

47.  In P 7^th, §16, P has said on oath that at the beginning of the partnership, a number of his friends were willing to contribute to the betting pool but they were simply “handshake agreements” with no written contracts. He has further said on oath that apart from the agreements with third parties already disclosed, there were no other written agreements with any third parties in the name of or on behalf of the Partnership Business.

48.  Mr Lam has pointed out that prior to the application for specific discovery leading to the making of the 2014 Order, in P’s witness statement dated 16 August 2013 (“WS”), he has said that in the early days he met with friends and with most of these people he executed signed agreements. This, he submitted, shows what was said in P 7^th is not true and should not be taken as conclusive.

49.  Although Mr Yan SC accepted on one reading there was a contradiction between what P has said on oath and his witness statement, he submitted that what was said on oath should be given weight as opposed to WS which was not made on oath and may be supplemented by further witness statements when this matter is closer to trial.

50.  He further submitted that the matters stated in WS should remain confidential until P testifies at trial and the mere reference to the exhibits of WS should not be taken as having waived privilege over the body of WS.

51.  On my part, even if I were to have regard to what was stated in WS, I do not think what was said in WS was unequivocal so as to amount to a direct contradiction of what was said in P 7^th.

52.  In WS, §73, P stated that, “in the early days [D1] met with two of the friends who had joined forces with us. He then refused to meet them and others later – possibly through embarrassment with what had happened with the model.” In the following paragraph, it is stated, “With most of these people, I executed signed agreements…”. It is not clear the timeframe he is referring to. Since in the previous paragraph he said D1 met the friends with P but he refused to meet them in the later period, on one reading, “most of these people” could be referring to the ones D had refused to meet in the later period.

53.  I also accept that when faced with the application for specific discovery P would necessarily have focused on the documents requested and given that he had to say on oath what his position was in respect to those documents, more weight should be given to what he said in his affirmations.

54.  Nor is the assertion that in the early days there were mere “handshake agreements” with no written contracts inherently incredible in light of the fact that these were friends of P and that they were agreeing to participate in gambling and using the model effectively to “cheat” HKJC. They may not want, or need, to leave a paper trail.

55.  In any event, given that P has said on oath twice (in P 7^th and P 17^th) that there were no written agreements, there is no utility or necessity to make an order requiring him again to state on oath whether there were other written agreements with third parties.

56.  In so far as Mr Lam seeks records of contemporaneous communication evidencing the existence and terms of the “handshake agreements”, apart from the mere assertion that it does not make commercial sense that investment agreement involving substantial sum has no written record at all, there is no evidence suggesting there were such records. On the other hand, as mentioned already, given that they were agreements made with P’s friend and the nature of the activities agreed to, I do not accept that it made no commercial sense not to have record of those agreements. Overall, I am not satisfied that a prima facie case of existence and possession, custody or power has been made out.

Category E

57.  Mr Lam complained that notwithstanding the 2014 Order, not one document has been produced showing how profits were shared with the outside investors.

58.  P has said on oath that given there were only never more than a handful of people involved the calculation of share of betting proceeds (pro rata basis) was simple. Although he wrote down on papers initially, these were not kept as records since there was no need to do so. He stated that he did not have possession, power or custody of any statements and records of how profits were shared.

59.  Mr Lam submitted that it is reasonable to presume that at least some of the profits generated from horse betting were paid into the bank accounts of the outside investors and there must have been some banking records and/or statements which show how the proceeds were paid out and received by the investors. Apart from such assertion, Mr Lam has not pointed to any document or admission by P on the existence of other records that is in P’s possession, power or custody. What has been said on oath twice by P is conclusive.

60.  Furthermore, given that P has indicated in P 17^th that he is willing to identify from the bank statements from HSBC how profits were shared, I am of the view that there is no utility and necessity to make an order again for specific disclosure and a further affirmation which is plainly covered by the 2004 Order.

Disposition and Orders

61.  Accordingly, I will make an order that P, within 28 days from the handing down of this Decision:

(1)  makes an affirmation stating whether bank statements of the Joint Account for the period from 27 January 2004 to 27 July 2012 are, or have any time been, in P’s possession, custody or power, and if the same have been but are no longer in P’s possession custody or power, to state in the affirmation when he parted with the same and what have become of the same; and

(2)  produce copies of the banks statements referred to in (1) that are in his possession, custody or power to Ds’ solicitors.

62.  Subject to the order above, the Summons is dismissed.

63.  Given the very limited success of Ds in this application, but recognizing further orders were not required by the undertakings given by P after the making of this application, I will make a costs order nisi, which shall become absolute if no application is made within 14 days from the date of the handing down of this Decision, that Ds shall pay to P 80% of the costs of and occasioned by the Summons with certificate for one counsel, to be taxed if not agreed.