XCHRX NG MAN PUI v. THE PERSONAL REPRESENTATIVE OF NG CHING YING, Deceased AND ANOTHER

HCA 13271/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 13271 OF 1997

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D E C I S I O N

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1. This is the Plaintiff's summons for discovery for disclosure of all the assets in the Schedule attached to the Probate of Ng Ching Ying on the basis that all the assets are relevant to the Action.

2. The Action makes a claim to various assets and monies which, it is claimed, were wrongfully transferred by Ng Ching Ying from the estate of the patient. The Defendant is prepared to disclose those parts of the Schedule which refer to those assets or monies claimed in the Amended Statement of Claim and derivatives thereof. But Miss Hudson for the Plaintiff says that that is inadequate because 1) such an exercise would be impossible because it would be difficult to see the finite end of money movements, and 2) she says the value of the assets and monies claimed by the patient is about HK$40 m. which is greater than the value of Ng Ching Ying's estate which is about HK$29 m. Therefore, the Plaintiff argues, applying Hallett's case, all that is in Ng Ching Ying's estate must belong equitably to the patient.

3. In my view, the discovery offered by the Defendant in the affidavit of Lui Kwan Pok filed yesterday is sufficient. As to the first point, whether there could be a finite end to money movements, it is in my view, premature for the Plaintiff to say at this stage that the Defendant would not do a complete exercise. If after discovery is done, the Plaintiff finds that further documents should be disclosed because the tracing exercise done by Ng Ching Ying's estate has not been completed, no doubt the Plaintiff can come back to this court or to a master with an appropriate application for specific discovery. It is too early, in my view, to say now that the Defendant would not ever be able to comply completely with the order.

4. Secondly, it does not, in my view, necessarily follow from the application of Hallett's case that all the assets in Ng Ching Ying's estate must belong to the patient. In my view, it must depend on the use which Ng Ching Ying made of the assets and the monies which were allegedly transferred from the estate of the patient. Again, until further discovery on the limited basis is done, it would be impossible to say that all the assets in Ng Ching Ying's estate must belong in equity to the patient.

5. Accordingly, I would restrict the discovery order in paragraph 4 of the draft order to the following terms.

"The Defendants do within 21 days produce for inspection by the Plaintiff and its solicitors at the office of the Defendants' solicitors such parts of the Schedule attached to the grant of Probate of the estate of Ng Ching Ying deceased dated 5th November 1998 as refer to the assets or monies claimed by the Plaintiff in the Amended Statement of Claim and/or derivatives thereof, and do permit them to peruse the same and to be supplied with copies thereof."

6. In relation to costs, the Defendants' solicitors had on 21st May 1999, regarding the question of discovery, written to the Plaintiff's solicitors to say that they were prepared to disclose the contents of the said schedule, but only to the extent that they are relevant to the matters in issue in the consolidated action, and for matters that are not mentioned in the consolidated action and hence are irrelevant to the matters in issue, the Defendants' solicitors indicated that they would be blanked out or covered up, and that they would not allow the same to be inspected. By way of reply, the Plaintiff's solicitors said that the Schedule to the grant of Probate was a clearly relevant document and objected to the Defendants' allegation that the application for the specific discovery was a fishing expedition. However, no clarification was sought from the Defendants' solicitors as to the complete extent of the discovery that they were prepared to make of matters mentioned in the consolidated action.

7. In all the circumstances, in my view, the matter could have been dealt with without resort to Court and in my view, the proper order to make as to costs would be Defendants' costs in the cause.