XCHRX CHAN CHUNG WAI and Other v. CHEUNG WAI PUI and Others

HCA8721/96

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8721 OF 1996

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D E C I S I O N

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1. This is an appeal from an order of a master ordering the 1st to 7th Defendants ("the Defendants") to file and serve a further and better List of Documents to be verified by affirmation, with specific reference as to each category of documents specified thereunder.

2. On appeal before me, the parties have helpfully confined their dispute to 4 items in the Master's Order, viz. items (8), (9), (11) and (12).

3. Mr Mak for the Plaintiffs (Respondents) does not present his case on the basis of Order 24 rule 7, but on Order 24 rule 3. Note 24/3/5 provides that an order may be made for a further and better list of documents where it appears (a) from the list itself, (b) from the documents referred to in it, or (c) from admissions made either in the pleadings of the party making discovery or otherwise, that the party making discovery has or has had other relevant documents in his possession, custody or power.

4. In relation to items (8) and (9), Mr. Poon concedes he should make discovery of notices to the Companies Registry in relation to the appointment of the 1st, 2nd and 3rd Defendants and Kwok Lo Sum as directors or secretary of the 6th Defendant, and in relation to the appointment of the 1st, 2nd, 3rd and 4th Defendants as directors or secretary of the 7th Defendant.

5. That being the case, I cannot see how he can resist making discovery of the relevant minutes of meetings relating to the appointments, since the notices to the Companies Registry would necessarily have reference to the dates of appointment of those officers, and they would have been appointed pursuant to meetings which would have to be minuted. The relevance of these documents is evident from the disputes on the pleadings as to the periods of appointment to those offices: see paragraphs 14 & 15 of the Statement of Claim and paragraphs 26-31 of the Defence.

6. The correspondence is however another matter. There may or may not have been any such correspondence; it is not suggested that it has been referred to in the original list, or any documents therein, or been admitted in the Defence, and it is therefore premature at this stage to order a further and better list to include this correspondence.

7. In relation to items (11) and (12), these concern brands of Chinese medicines that the 8th Defendant had previously dealt in as sole distributor. In their Defence, the Defendants had admitted that the 8th Defendant had been distributor of "various" Chinese medicines (paragraph 37), and has asserted that the 6th Defendant began to carry on the business of selling and distributing Chinese medicines in 1992, which included two types of Chinese medicines previously sold by the 8th Defendant (paragraph 51). As far as the 5th Defendant is concerned, it is pleaded that it carries on business as a retailer of Chinese medicines distributed by the 6th Defendant.

8. In my judgment, it is premature for the Plaintiffs now to ask for discovery of documents relating to the brands they say the 8th Defendant had previously distributed, without knowing what specifically is the case of the Defendants relating to each of the brands. The pleadings can be better particularised by both sides, so as to better define and confine the scope of dispute in relation to the particular brands of Chinese medicines. When that is done, the Plaintiffs would have a better idea as to which medicines the Defendants admit they are involved with, and then a further and better list may be sought if appropriate.

9. Accordingly I would set aside the order of the Master in relation to items (11) and (12), and for items (8) and (9), I would vary the Master's order to read as follows:

"(8) All notices to the Companies Registry, minutes of board meetings and minutes of general meetings including annual general meetings and extraordinary general meetings of the 6th Defendant in relation to the appointment of the 1st, 2nd and 3rd Defendants and Kwok Lo Sum as directors or secretary of the 6th Defendant.

(9) All notices to the Companies Registry, minutes of board meetings and minutes of general meetings including annual general meetings and extraordinary general meetings of the 7th Defendant in relation to the appointment of the 1st, 2nd , 3rd and 4th Defendants as directors or secretary of the 7th Defendant".

(Following argument on costs)

10. I would order the costs before the Master to be paid by the Defendants in any event with certificate for counsel, but that the costs of today to follow the event. Since the Defendants have substantially succeeded today, I would order that the costs be paid by the Plaintiffs in any event.

(MARIA YUEN)

Judge of the Court of First Instance
High Court