LAI CHIK KUN MICHAEL AND OTHERS v. THE BAPTIST CONVENTION OF HONG KONG AND ANOTHER

HCA 2741/2018

[2026] HKCFI 3433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2741 OF 2018

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BETWEEN

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REASONS FOR DECISION AND
SUMMARY ASSESSMENT OF COSTS

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A. INTRODUCTION

1.  The Plaintiffs issued 3 writs of subpoena ad testificandum (“the Subpoenas”) against 3 respective witnesses (“the Intended Witnesses”), summoning them to attend trial to give evidence on behalf of the Plaintiffs. These were the Intended Witnesses’ applications to set aside the Subpoenas on the grounds that:

(1) The Plaintiffs were abusing the process;

(2) The Plaintiffs had no reason to think that the Intended Witnesses would testify for them;

(3) The Plaintiffs failed to establish relevance of the Intended Witnesses’ evidence; and

(4) There was delay in the issue of the Subpoenas.

2.  After hearing arguments, I set aside the Subpoenas with costs to the Intended Witnesses on indemnity basis. Here are my reasons.

B. BACKGROUND

3.  The Plaintiffs are alumni of the Pui Ching Primary School (i.e. the “School”) and the Pui Ching Middle School (the “Middle School”) (collectively, the “Pui Ching Schools”):

4.  BCHK is a charitable institution under s.88 of the Inland Revenue Ordinance (Cap. 112), and the sponsoring body that exercises overarching management over the School.

5.  The School was first established in Hong Kong in 1933. It was not a legal entity and was not capable of holding assets. Since the 1950s, BCHK has been entrusted with the administration of the School and its assets. BCHK and the School maintain separate bank accounts in their respective names.

6.  BCHK is also the operator of a tertiary education institute known as the Pui Ching Academy (“the Academy”) (formerly known as the Pui Ching Education Centre (the “PCEC”)), unrelated to the Pui Ching Schools. The School, the Middle School, and the PCEC/Academy are separate institutions with different school registration numbers.

7.  In or around 2006, the School undertook a large-scale project (“Redevelopment Project”) to re-develop its then school hall into a multi-storey building (“New Education Building”). To fund the Redevelopment Project, BCHK conducted a fundraising campaign to solicit donations.

8.  The Plaintiffs claim that they had made donations in reliance on fundraising materials in which BCHK had falsely represented (i) the purpose of the donations and the intended use of the New Education Building; and (ii) that without further donations, the School would experience financial difficulty in carrying out the Redevelopment Project.

9.  The Plaintiffs also allege that since the 1950s, BCHK has been holding the funds in the School’s account on a charitable trust (“the Trust”) and the school name of “Pui Ching” on trust for the Pui Ching Schools. As such, BCHK is under the obligation to apply the funds in the School’s account exclusively for the School’s purposes.

10.  In gist, the Plaintiffs’ claims against BCHK are for: (a) return of donations due to misrepresentation; and (b) equitable compensation for misapplying the Trust assets in breach of the charitable trust.

11.  BCHK’s case is that it had made clear in the fundraising materials that (i) only the lower portion of the New Education Building would be used by the School, whereas (ii) the upper portion of the New Education Building would be used by the PCEC/Academy.

C. LEGAL PRINCIPLES REGARDING ISSUE OF SUBPOENAS

12.  The following principles are distilled from the authorities.

13.  An application for issuance of a subpoena is a case management matter which should be made without delay at the case management conference and disposed of before pre-trial review: Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd [2010] 2 HKC 356, §4; Chan Cheung Ming Jacky v Siu Sin Man [2014] 5 HKLRD 89, §§21, 22, Lam VP.

14.  Under Order 38 rule 2A(10) of the Rules of the High Court, where a party fails to comply with the direction for the exchange of witness statements, he shall not be entitled to adduce evidence without the leave of the Court. He must demonstrate that efforts have been made to approach the witness for a witness statement (which should outline the precise evidence sought to be used). If he has made no attempt to do so and has no good reasons for the failure to comply with the direction for exchange of witness statements, he cannot expect the court to grant him leave to adduce evidence from the witnesses subpoenaed by him. See Cosimo Borrelli v Allen Tak Yuen Chan [2019] HKCFI 1376 at §30; Tsui Koon Wah v Director of Social Welfare (unrep., HCA 2938/2003, 17 February 2006) at §§28-29, Chu J (as she then was).

15.  If a witness is unwilling to testify and the party has decided to subpoena him nonetheless, he should so inform the court and the other side at the case management conference. He should apply to issue the subpoena once the trial dates are known. See Big Island, §4; Chan Cheung Ming Jacky, §25.

16.  An applicant must justify a late application with good, strong reasons. Whilst the court would not rule out the possibility of dismissing a late application on the basis of delay alone, one must bear in mind Order 1A, r.2(2) that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties. The exercise of case management power must be with reference to the facts and circumstances of the case. There is no place for the application of a mechanical rule that the court will invariably refuse an application simply because a party is guilty of serious delay without any good explanation. The court must conduct an overall balancing exercise. See Chan Cheung Ming Jacky, §27.

17.  The court will go through a filter process to see if the application is an abuse but the judge cannot take it upon himself to decide issues relating to the relevance of any evidence that may be given or to its usefulness. In respect of a late application, the court will have to examine all the relevant circumstances. The significance of the intended evidence to be adduced is one factor to be taken into account: Chan Cheung Ming Jacky, §§16, 28.

18.  It is good practice when making an application ex parte in chambers without summons to be supported by affidavit and to have such affidavit served together with the subpoena, when it is issued, on the party summoned. If there are good reasons, the applicant can so inform the court why this should or could not be done: Cosimo Borrelli v Allen Tak Yuen Chan [2019] HKCFI 1376.

19.  Upon issue of the subpoena, the issuing party should inform the other side forthwith: Big Island, §4.

20.  The other side should then decide if he wishes to apply to set aside the subpoena on grounds such as that the witness’ evidence is irrelevant or that the trial will be unduly expanded ancillary thereto. Any setting aside application should be taken out as soon as practicable. See Big Island, §4.

21.  The Court will take into account whether or not the plaintiff has reason to think that the intended witness will testify in support of his claim. An intention is to cross-examine these witnesses is a questionable purpose. At the trial, the applicant has to demonstrate that the witness is adverse or hostile before he will be permitted to cross-examine his own subpoenaed witness. See Tsui Koon Wah, at §33.

22.  The Court will set aside a subpoena if it is issued “less with a view to obtaining evidence than causing inconvenience” and were “irrelevant, fishy and oppressive”: Computer Personnel Ltd v Digital Equipment (HK) Ltd [1987] 1 HKC 140, 141I-142B, CA.

D. THE INTENDED WITNESSES

23.  The Plaintiffs had issued subpoenas against 5 witnesses altogether. The present application concerned only 3 of them:

(1) Reverend Tong Eric Wing Mun (“Rev Tong”), who was the President of BCHK from 2009 to 2013, re-elected in 2022 and is now serving the 4^th term as the President. He has made 2 affidavits in this action.

(2) Wong Ling Tim (“Wong”), who had dealt with the Education Bureau. He has been the Supervisor of the School since 2018.

(3) Ho King Chung (“Ho”), who is already a witness for BCHK.

24.  One other subpoena has been set aside recently by DHCJ Jonathan Wong: Koo Ming Kown v Mok Kong Ting [2026] HKCFI 794. The learned judge based his reasoning on a number of points also raised by the Intended Witnesses in the present case such as delay, lack of reason to think that that witness would testify in support of the Plaintiff’s claim, objection against subpoena of the defence witness, and objection against subpoena for the purpose of discrediting others: §§5.1-5.9. Mr Ng, counsel for the Plaintiffs, very fairly acknowledged the apparent similarity of that case with the present.

25.  The 5^th subpoena was not the subject matter of these applications.

26.  Mr Ng, whilst accepting that whether BCHK was a charitable trustee was a matter to be decided primarily based on the documents available, submitted that the Intended Witnesses were or are involved in the administration of the School and/or BCHK at different points in time, and could give relevant evidence on the part of the action concerning the return of donations.

E. ABUSE OF PROCESS

27.  The Plaintiffs did not file a supporting affidavit at the time the Subpoenas were applied for. The Subpoenas only stated that the Intended Witnesses shall “give evidence on behalf of the 1^st to 6^th Plaintiffs” without outlining the evidence sought from those witnesses. That was in breach of the principles in paragraphs 14 and 18 above.

28.  The Plaintiffs failed to give any reasons for the Subpoena, despite the Defendants’ request, before this application was made. That was, in my view, a high-handed approach.

29.  The relevant events in this case happened over 10 years ago. The Intended Witnesses should not be dragged into a memory game, and risk their own credibility due to the issuing party’s failure to give any clue as to the scope of evidence the subpoenaed witnesses was to give.

30.  Mr Ng submitted that the Intended Witnesses were, to a certain extent, connected to BCHK. The suggestion that BCHK did not know what the Intended Witnesses had to say did not appear to be realistic.

31.  With respect, that was a wrong approach and illustrated the Plaintiffs’ abuse of process. It was not for BCHK or the Intended Witnesses to guess what the latter were expected to testify on. It was for the Plaintiffs as applicants to justify the need to call such witnesses.

32.  Mr Yip and Mr Ko (counsel for the Intended Witnesses) submitted that this was another attempt by the 2^nd Plaintiff (“Koo”) to exert undue pressure on BCHK’s office holders. Counsel referred to the courts’ criticisms of Koo as a “vindictive litigant”: Koo Ming Kown v Young Kwok Hung Clement, HCA 1619/2014, 2 June 2017 §22; his over-zealous litigation approach and that he had failed against BCHK in a case where no defendants had testified at all: Koo Ming Kown v The Baptist Convention of Hong Kong [2024] HKCFI 2869, at 103(a).

33.  Without disrespect, I did not place much weight on this submission. Even if Koo was a vindictive litigant, there was no suggestion that the other 5 Plaintiffs were of a similar kind.

34.  In view of paragraphs 24 – 31, the Plaintiffs had acted in abuse of process.

F. PLAINTIFFS HAD NO REASON TO THINK THAT THE INTENDED WITNESSES WOULD TESTIFY FOR THEM

35.  The Plaintiffs had never requested the Intended Witnesses to give witness statements for them. The Plaintiffs themselves admitted that they thought the Intended Witnesses would very unlikely be willing to do so due to the history of hostile litigation between Koo and BCHK. It demonstrated that the Plaintiffs had no reason to think that the Intended Witnesses would testify for them.

36.  What was more unacceptable was that the Plaintiffs still saw fit to subpoena Ho despite his having filed 2 witness statements and would be a witness for BCHK at the trial. The Plaintiffs’ explanation, nevertheless, was that “as a witness of [BCHK], unless he is compelled with a Writ of Subpoena Ad Testificandum, [Ho] is at liberty not to attend the Court for giving evidence at the trial”.

37.  Applying paragraph 22 above, the Plaintiffs would have to turn Ho hostile at the trial before he could be their witness under a subpoena. There was utterly no basis to think that the Plaintiffs will be able to do so.

G. PLAINTIFFS FAILED TO ESTABLISH RELEVANCE OF THE INTENDED WITNESSES’ EVIDENCE

38.  The Plaintiffs only relied on the fact that the Intended Witnesses were/are office holders in BCHK, without explaining how their evidence would be relevant to assist the Plaintiffs’ case.

39.  With regard to the claim for return of the donations, the Plaintiffs did not allege that the Intended Witnesses were involved in or had personal knowledge of the alleged misrepresentations.

40.  The charitable trust claim was, by its very nature, an issue relating to the historical arrangements between BCHK and the School since the 1950s.

(1) In respect of Rev Tong, the Plaintiffs had failed to explain how he could personally testify as to arrangements that arose about 60 years before he assumed office.

(2) In respect of Wong, the Plaintiffs claimed that “[i]n view of Mr Wong’s position within the Primary School, Mr Wong should have direct knowledge of the purpose for which the New Building was designed and constructed and the status of the use of the New Building”. On the Plaintiffs’ own pleaded case, the School undertook a large-scale project to redevelop its then school hall into a multi-storey education building “[i]n or about September 2006” and there were a series of fundraising activities to solicit donations from inter alia alumni “during the period from 2006 to 2009”. However, Wong only became the Supervisor of the Primary School since 2018. The Plaintiffs had not explained how Wong could give relevant evidence in relation to historical events 9-12 years before he assumed office.

41.  Applying a simple filtering process, the Subpoenas were plainly irrelevant to the issues for trial.

H. DELAY

42.  The trial is to last from 5 to 15 October 2026. The Subpoenas were issued about 12 months before the trial is due to commence. At first blush, there was sufficient time for the Intended Witnesses to plan their diaries in order to attend the trial. However, if the Subpoenas were upheld, it would be unjust to force the Defendants to squeeze their investigation, preparation and decision-making processes all into the coming few months: Liu Hon Wong v Liu Chee Kwan [2022] HKCFI 3157 at §26.

43.  The more repugnant thing was that the Plaintiffs had never indicated to the Court, at any case management hearing that they intended to issue Subpoenas, and for as many as 5 witnesses. Concentrating on the present 3 Intended Witnesses, it was not possible to estimate the time needed for (a) their examination in chief; and (b) cross-examination (especially when Ho may be turned hostile). Whether the overall trial time would be affected was also unknown. Such litigation conduct of the Plaintiffs violated case management principles and should not be condoned.

I. CONCLUSION AND COSTS

44.  The grounds set out in paragraph 1 above having been established, I therefore set aside all 3 Subpoenas.

45.  The Subpoenas were issued without any basis at all and the Plaintiffs abused the process. I therefore ordered indemnity costs with certificate for one counsel.

46.  On a nisi basis I summarily assess the costs of the Intended Witnesses at $400,000 and order them to be borne by the Plaintiffs.

47.  I thank counsel for their assistance.