XCHRX TANG WOUNG SHIU v. TANG KUN YEUNG AND OTHERS

HCA 484/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 484 OF 1997

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REASONS FOR DECISION

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1. In both actions, namely HCA 484/1997 and HCA 7128/1997, the Plaintiffs, as members of the Tang Sam Wo Tong and Tang Leung Shing Tong, claim against the 1st Defendants, the mangers of the Tongs for breach of fiduciary duties and against the 2nd Defendant, representing the Yuen Long District Office, for negligently consenting to the sale of the Tong properties.

2. There are three streams of the Tang Sam Wo Tong namely, Tang Man Fat Tso, Tang Man Chun Tso, Tang Man Hoi Tso. Tang Man Fat Tso and Tang Man Hoi Tso are also streams of the Tang Leung Shing Tong. The Plaintiffs belong to the Tang Man Fat Tso.

3. The Plaintiffs allege that the 1st Defendants, without their consent had disposed of the Tong properties at deflated prices. The Plaintiffs also allege that the 1st Defendants had failed to include their names in the membership list of the Tongs when consent for the disposal of properties were obtained from the Yuen Long District Office.

4. As against the 2nd Defendant, the suggestion is that the Yuen Long District Office in consenting to the sale of the Tong properties had not consulted those who should be consulted and had not ensured that the disposal of the property was done for the benefit of all the members of the Tongs.

5. The 1st Defendants in their defence suggest that the Plaintiffs' interest were represented by a Mr Tang Kwun Yeung who was the uncle of the Plaintiffs. At the material times, Mr Tang Kwun Yeung was the manager of the Tang Man Fat Tso.

6. The 1st Defendants further suggests that the sale of the properties was authorised by a valid resolution passed in a meeting of the Tongs and members had been notified through their family heads or representatives. Notice of the proposed sale had also been put up in the village notice board for a month inviting objection before the sale took place and the best possible price had also been obtained.

7. In connection with the present dispute, the 1st Defendants had in fact set aside a sum of $300,000.00 as payment for the Plaintiffs' due shares subject to, of course, proof of entitlement.

8. The 2nd Defendant also suggests that the sale of the properties had followed the normal practice in that notices were put up to inform the public and the written consent of the members of the Tongs had been obtained. In fact, no objection to the proposed sale was received before the consent was given.

9. After the close of the pleadings, lists of documents were filed by the parties. The Plaintiffs then applied under Order 25 rule 3 of the Rules of the High Court for a further and better list of documents from the Defendants. The application was rejected by Master Lung hence the present appeal.

10. In support of the application, the Plaintiffs had filed an affirmation pointing out what they described as illustrations to support their contention that the Defendants should be ordered to file a further and better list. The suggestion was that the Defendants had not made full discovery.

11. Under Order 24 rule 3, the court may order a party to serve a further and better list of documents where it appears from the list itself or from the documents referred to it or from admission made either in the pleadings or otherwise that the party has or had had relevant documents which clearly are or have been in their possession, custody or power. The rule clearly confers upon the court a discretion, the purpose of which is obvious so that any litigation could be disposed of expeditiously, fairly and cheaply without the court having to be burdened with unnecessary documents.

12. I have listened to Mr Tang's submission. I have considered the various documents put toward by him as illustration of the defect in the list of documents filed by the Defendants. I have also considered the issues raised by the parties on the pleadings as they presently stand. I am not persuaded that the documents put forward by the Plaintiffs as illustration are relevant to the issues raised in the pleadings at all.

13. As I have observed earlier, the only issue involved in the disputes is whether the 2nd Defendant, in failing to consult the Plaintiffs personally, had been negligent and whether the 1st Defendants were in breach of their fiduciary duty in selling the property at the deflated prices.

14. The request by the Plaintiffs is not for the discovery of certain particular or specific documents or certain particular or specific classes of documents. The Plaintiffs simply raised certain types of documents as illustration and the Plaintiffs even made it clear in their submission that such illustrations are by no means exhaustive.

15. Discovery is not a fishing expedition. If the Plaintiffs contend that certain specific documents in the possession of the Defendants are relevant and had not been disclosed, then perhaps an application for specific discovery of those documents should be made.

16. The documents put forward by the Plaintiffs as illustration as I have ruled, in the light of the issues arising out of the pleadings, are in fact not relevant. If the Plaintiffs are in a position to pinpoint at any specific documents that they claim to be relevant and to be in the possession of the Defendants which documents had not being disclosed then perhaps the court can view their application with some degree of sympathy. But that is not the case.

17. In any event, the order for the filing of a further and better list of document under Order 24 rule 3 is a discretionary matter. The court must consider if the discovery is necessary either for disposing, fairly of the cause or for saving costs.

18. Having considered the issues involved in and the nature of the dispute, the documents that had already been disclosed by the Defendants as well as the nature of the Plaintiffs' application, I am persuaded that there was valid basis upon which the Learned Master could have exercised his discretion in the manner as he did. There is nothing upon which I can properly interfere with the Master's exercise of his discretion. Hence the appeal against his order must be dismissed and I so order.

19. There is no reason why the costs should not follow the event. In the circumstances I order that the Defendants' costs of the appeal is to be borne by the Plaintiffs in any event.