PERI (HONG KONG) LTD v. ABLE ENGINEERING CO LTD AND ANOTHER

­HCA 410/2022

[2026] HKCFI 5129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 410 OF 2022

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REASONS FOR DECISION
AND DECISION ON COSTS

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A.  BACKGROUND

1.  In this case, the Plaintiff claims against the Defendants for conversion and detinue of certain Materials placed on a construction site.  The 1^st Defendant was the contractor of the main works at the site and the 2^nd Defendant was a sub-contractor carrying on the business of building and construction work.  Two of the agreed issues in dispute are (a) whether those Materials were in the control or possession of any of the Defendants; (b) whether any of the Defendants denied the Plaintiff access to the site to retrieve the Materials (the “Issues”).  The trial is due to commence on 10 November 2026 and will last 9 days.

2.  By a summons filed on 24 July 2026 (the “Summons”), after the pre-trial review, the Plaintiff sought leave to adduce a document at trial comprising 3 pages, being a printout of the LinkedIn profile of Mr Yiu Ki (Kiwi) Heung (the “Document”).  The Document recorded Mr Heung as the full-time “Site Agent” of the 1^st Defendant since October 2019 till now.  It covered the subject period in this case and was allegedly relevant to the Issues of whether the 1^st Defendant controlled the construction site and whether it was the 1^st Defendant who denied the Plaintiff access to the site.

3.  According to the 2^nd affirmation of Mr Kong of the Plaintiff (“Kong-2^nd”), the Plaintiff came by the Document in the following circumstances.  Shortly after the pre-trial review on 30 June 2026, the Plaintiff arranged a conference with counsel on 3 July 2026 to consider the directions given at the pre-trial review (“PTR Order”) and the steps thereafter.  In preparing for that conference, Mr Kong reviewed various court documents, including the Defendants’ witness statements.  Mr Kong noted from the 2^nd Defendant’s witness statement that Mr Heung was the 2^nd Defendant’s employee, which differed from Mr Kong’s understanding that Mr Heung was and is the site agent employed by the 1^st Defendant instead.

4.  On about 2 July 2026, Mr Kong conducted a search for Mr Heung on the internet and located Mr Heung’s public profile page on LinkedIn.  Mr Kong printed it out, which is the 3-page Document.  When the Plaintiff revisited the webpage on 30 July 2026, it was discovered that Mr Heung’s profile had been removed from LinkedIn.  These were recorded in Mr Kong’s 3^rd affirmation (“Kong-3^rd”)

5.  The Plaintiff promptly disclosed the Document to the Defendants on 14 July 2026 by its 5^th Supplemental List of Documents (“5^th SLOD”).  It was then four months before the trial was due to start.  The 1^st Defendant objected to its disclosure on 17 July 2026.  The Plaintiff took out the Summons for leave to make discovery of, and to adduce, the Document at the trial; alternatively, for leave to include the Document in the trial bundles on a de bene esse basis, with admissibility being left to the trial judge.

6.  The 1^st Defendant opposed the Summons on the grounds of delay and prejudice.  The 2^nd Defendant maintained a neutral stance.

7.  After hearing submissions, I ordered as follows:

1)  Leave to the Plaintiff to make this application pursuant to paragraphs 20 and 21 of the PTR Order;

2)  Leave to the Plaintiff to make discovery of the Document;

3)  Leave to the Plaintiff to admit the Document as evidence and to rely on it at the trial;

4)  Leave to the Plaintiff to include Kong-2^nd and 3^rd in the trial bundles;

5)  Leave to the 1^st and 2^nd Defendant to file supplemental witness statement(s) in response to the Document and Kong-2^nd and 3^rd, within 28 days from the date of this hearing;

6)  Leave to the Plaintiff to reply within 7 days thereafter to new matters that have arisen out of the 1^st and/or 2^nd Defendant’s supplemental witness statements; and

7)  Costs be reserved.

8.  Here are my reasons.

B.  LEGAL PRINCIPLES

9.  Discovery is a continuing obligation.  A party may be permitted to rely at trial on a document disclosed late where it places before the court: (a) the reason for the lateness; (b) the provenance and the maker; (c) the relevance; and (d) the availability of the maker for cross- examination.  Provenance and authenticity go to weight and not admissibility: Hong Lok School Ltd & Ors v Chow Sai Yiu & Ors [2003] 2 HKLRD 782, DHCJ Lam (as he then was), §§4, 6 and 11.

10.  There is no longer room for the notion that delay, even though inordinate and unexplained, will be forgiven as long as there is no prejudice and costs are paid: Lau Mo Choi & Anor v Lau Muk Fat [2026] HKCFI 2999, H. Au-Yeung J, §10.

11.  The court’s exercise is one of balancing the delay against the relevance and prejudice, with a view to the just resolution of the substantial dispute: O. 1A, r. 2 of the Rules of the High Court (Cap. 4A); Converge Design & Construction Co Ltd v Mount Kelly International Ltd [2020] HKCFI 2433, Mimmie Chan J, §§2 and 9.

C.  LEAVE TO ADDUCE THE DOCUMENT

12.  There is no dispute that Mr Heung was the Site Agent.  Ms Annise Ho, one of the Plaintiff’s witnesses, described Mr Heung as “the site agent responsible for the operation of the Site” for and on behalf of the 1^st and/or 2^nd Defendants.  On or about 1 December 2021, Ms Ho requested Mr Heung to allow her colleague to enter the Site to check and have a look at the current condition of certain Materials.  However, Mr Heung replied saying that he had asked a “manager” and the Plaintiff would not be allowed to enter the Site because there was no contract with the Plaintiff.  Ms Ho was not satisfied with the answer and stated that there was a contract.  However, Mr Heung simply replied stating that he had no authority and asked Ms Ho to find the “manager” directly for approval.  On the other hand, Mr Cheung Pak Lun of the 2^nd Defendant stated that Mr Heung was the 2^nd Defendant’s employee.

13.  Mr Lin, counsel for the 1st Defendant, submitted that the probative value of the Document was low because it did not go to resolve the ultimate issue of whether the 1^st Defendant committed detinue or conversion of the Materials.  Mr Kong had no personal knowledge of the identity of the employer of Mr Heung.  It would be futile for him to testify as to the provenance of the Document and that he printed it out.

14.  With respect, Mr Heung was not relying on the Document to assert personal knowledge of the employment status of Mr Heung.  Rather, the Document, taken at its highest, could show that the Plaintiff was denied access, that Mr Heung conveyed a message to Ms Ho on behalf of the 1^st Defendant and contradicted Mr Cheung’s version.  Mr Heung had throughout the subject period been employed by the 1^st Defendant, even if he was also employed by the 2^nd.  Taken at its highest, adverse inference could be drawn that someone was suppressing material evidence because the Document was removed from the public domain.  Taken together, the Document may show that Mr Heung, as employee of the 1^st Defendant, had denied the Plaintiff access to the Materials.  The Document is therefore directly relevant to the Issues.

15.  Mr Kong has explained the time and manner by which he came by the Document, and he will attend the trial to testify on its provenance and be cross-examined.

16.  As to delay, the Plaintiff has promptly disclosed the Document to the Defendants as soon as the Plaintiff discovered it.  The Summons was taken out ten days later, with an affirmation fully explaining the circumstances.  Mr Kong’s explanation was credible for the purpose of the Summons.  The ultimate credibility and weight to be attached to the documents are for the trial judge to determine.

17.  Mr Lin had referred me to the procedural history, in which the Plaintiff had, on numerous occasions and as late as 13 August 2025, confirmed to the Court that it had no further interlocutory applications or discovery to make.  However, what really concerned me was the time lag between the last supplemental witness statement (filed by Mr Cheung Pak Lun on 15 April 2025) and the Plaintiff’s search of the internet.  That was where Mr Kong had not explained why the Plaintiff had not searched the LinkedIn profile earlier, in the year since 15 April 2025.

18.  Mr Lin relied on the case of Samtani v Samtani [2025] HKCFI 1076, §§47, 48 and 51(1).  The documents that were discovered late were physically present in the cabinets of the applicant’s office and there was no evidence that they were only placed thereat recently.  The question was why they were not discovered earlier, particularly since those documents had been specifically requested for by the plaintiff a long time ago and which the defendant was obliged to produce pursuant to a court order.  H. Au-Yeung J found that there was inexcusable delay on the part of the defendant.

19.  Here, there was no suggestion that a search on LinkedIn was a common occurrence in the discovery exercise for a case similar to the present one; or that the Plaintiff had deliberately withheld the internet search until recently.

20.  The Issue is a distinct issue sitting in the pleadings from the very beginning.  It could not have taken any party by surprise.  In any event, the 1^st and 2^nd Defendant would have to face cross-examination from the Plaintiff on the Issues.  It would not be difficult for the Defendants to respond to the Document and Kong-2^nd and 3^rd.  There is no suggestion that Mr Heung has left employment and is nowhere to be found.  Hence, the response required of the Document would be limited and manageable.

21.  Mr Lin submitted that adducing the Document may require the calling of additional witnesses that might derail the trial and divert the attention of lawyers from preparation for the trial and that was a prejudice: Converge Design, §2.  At the pre-trial review, the Court had imposed a stringent timetable for each party.

22.  With respect to Mr Lin, leave to the Defendants to file further witness statements was not to give them a blanket opportunity to review their tactics and put yet other statements of witnesses (including Mr Heung) who had always been there, to give evidence on everything about this case.  The further supplemental witness statement(s) should be limited to responding to the Document (as in all cases where new documents were discovered after a witness statement was filed) and Kong-2^nd and 3^rd.

23.  Overall, the probative value of the Document outweighed its prejudice.  The Plaintiff had tried its best to disclose it 4 months before trial.  It should be permitted to rely on the Document and Kong-2^nd and 3^rd.

D.  THE ALTERNATIVE OF LETTING THE TRIAL JUDGE DETERMINE ADMISSIBILITY

24.  The Plaintiff suggested having the Document included in the trial bundles on a de bene esse basis, leaving it to the trial judge to determine admissibility.  This alternative approach was most undesirable, as it would leave the Defendants in a state of uncertainty as to whether they should respond by witness statement before trial, or until the trial judge’s ruling on admissibility.  If the latter, the trial might have to be adjourned.  Accordingly, I decline to accede to this alternative approach.

E.  COSTS

25.  Despite the Plaintiff’s justification for the disclosure, it was still a late application that required indulgence of the Court and the Defendants had to respond to the Document quickly.  There was no fault of the Plaintiff that justified an indemnity costs order.

26.  I therefore order the Defendants’ costs be in the cause, with certificate for only one counsel.  I summarily assess the costs of the 1^st Defendant at HK$100,000 and that of the 2^nd Defendant at HK$10,000.  I make an order nisi accordingly.