YU MAN TO GERALD MAXIMILLIAN v. ABBY PAY&TECH HOLDINGS LTD AND OTHERS

HCMP 493/2026

[2026] HKCFI 3844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 493 OF 2026

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BETWEEN

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D E C I S I O N

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I.  INTRODUCTION

1.  Before me is the Originating Summons filed by the Plaintiff on 30 March 2026 (the “Originating Summons”), seeking pursuant to sections 373-375 of the Companies Ordinance (Cap. 622) (the “CO”) and the common law that, an order that the Defendants shall within 7 days produce or caused to be produced to the Plaintiff all those documents listed in the Schedule annexed to the Originating Summons and permit the Plaintiff to take copies of those documents. The Schedule contains 40 items.

II.  BACKGROUND

2.  The Plaintiff is a director of the 1^st Defendant (“ABBY”), a limited company incorporated under the laws of Hong Kong. The 2^nd to 4^th Defendants are also directors of ABBY.

3.  On 9 December 2024, the following parties entered into a Share Subscription and Shareholders’ Agreement (the “SHA”):-

(1)  ABBY;

(2)  The Payment Cards Group Limited (“PCG”);

(3)  Black Bear Merchant Services Limited (“Black Bear”);

(4)  BBMSL Limited (“BBMSL”); and

(5)  Intelligent Transfer Technology Limited (“Yedpay HK”).

4.  By the SHA:-

(1)  PCG and Black Bear shall subscribe for shares issued by ABBY such that PCG would become a 60% shareholder of ABBY and Black Bear would become a 40% shareholder of ABBY.

(2)  ABBY shall be the sole holding company of BBMSL and Yedpay HK which will operate actual businesses in Hong Kong.

(3)  ABBY and its subsidiaries (including BBMSL and Yedpay HK) (the “Group”) shall be principally engaged in payment acceptance business in Hong Kong and other territories as the board of ABBY (the “Board”) may determine.

(4)  PCG shall be entitled to appoint 3 directors (referred to as “A Directors ” in the SHA) to the Board, and Black Bear shall be entitled to appoint 2 directors to the Board (referred to as “B Directors” in the SHA).

(5)  PCG shall be entitled to appoint the Chairman of the Board.

5.  It is reasonably clear that the SHA is to set up the Group as a joint venture between PCG and Black Bear, whereby they are managed and controlled through ABBY.

6.  Pursuant to the SHA, the 2^nd to 4^th Defendants are directors appointed by PCG to the Board, and the Plaintiff and one Mr Chiang Kuang-Tse are directors appointed by Black Bear to the Board.

7.  Further, at all material times, the Plaintiff has been and remain the sole director of BBMSL. That said, since 18 March 2025, the Plaintiff has been redesignated away from day-to-day operational and administrative functions of BBMSL.

III.  REQUESTS ANSWERED IN 26 MAY 2026 LETTER

8.  After the issuance of the Originating Summons, by the 2^nd to 4^th Defendants’ solicitors letter dated 26 May 2026 (the “26 May 2026 Letter”) (clarified by letter dated 27 May 2026), the Plaintiff gave response to each and every item in the Schedule (except Item 40, which, to be fair to the 2^nd to 4^th Defendants, is an unnumbered item in the Schedule and so, may have been left out). The response can be classified into the following categories of response:-

(1)  “Not in our clients’ possession, power or control”;

(2)  “Do not exist”;

(3)  Production of documents; and

(4)  For Item 34, the 2^nd to 4^th Defendants’ position is that the Plaintiff is not entitled to this item.

9.  The above response was given expressly “[w]ithout prejudice to our clients’ right to contest the scope and entitlement of the Plaintiff’s request in the substantive proceedings”.

10.  Further, for (1) and (2) above, in the Affirmation of Tai Kam Yu filed on behalf of the 2^nd to 4^th Defendants in opposition, it was confirmed at §9(1) that:-

“I confirm on oath that, in respect of items which I have stated in the letter dated 26 May 2026 not to exist or not to be in our possession, custody or power, that is true and correct. I have caused reasonable searches to be made and no further responsive documents have been located.”

IV.  ISSUES IN DISPUTE IN THE PRESENT PROCEEDINGS

11.  Mr Ernest Ng, leading Mr Calvin Ng, counsel for the Plaintiff, submits that:-

(1)  In respect of those documents confirmed on oath not to exist or not in the 2^nd to 4^th Defendants’ possession, custody or power, the Defendants shall file an affirmation confirming whether such documents have been in existence, and have been in possession, custody or power.

(2)  In respect of those items for which the 2^nd to 4^th Defendants have produced documents under the 26 May 2026 Letter, the 2^nd to 4^th Defendants have never said that they are the complete set of the items.

(3)  For Item 34, a qualifying phrase would be added to the end “except for any live merchant database, any transaction log, any system credential or any cardholder data”.

12.  Ms Tina Mok, counsel for the 2^nd to 4^th Defendants, opposes most of the items, although according to her, the documents produced under the 26 May 2026 Letter are majority of the requested documents.

13.  ABBY, represented by Mr TC Wong of TC Wong & Co, follows the 2^nd to 4^th Defendants’ position, and for Item 34, ABBY’s position is that it does not concern ABBY at all.

14.  Although some of the requested documents have been produced, the costs issue (the Plaintiff seeking costs of the application while the 2^nd to 4^th Defendants willing to pay 70% of the costs up to 27 May 2026 but seeking costs thereafter) makes it necessary for me to determine the merits of the Plaintiff’s application.

V.  LEGAL PRINCIPLES

15.  The relevant legal principles are well established, and have been set out by Kwan J (as she then was) at §29 of Ng Yee Wah v Lam Chun Wah [2012] 4 HKLRD 40, which I shall not repeat here. There are five areas worth some discussion here, however: -

16.  First, although the relevant jurisdiction under sections 373-375 of the CO and the common law is to order the company and those in control to produce documents to the applicant director, in my view, the Court has ancillary or inherent jurisdiction to order the respondents to file an affirmation to explain (1) whether or not the documents in question have been in existence, and whether the documents have been in possession, custody and/or power of the respondents; and (2) if they have, but they no longer are, the whereabouts and what have become of the documents. Although a director’s application for inspection of the company’s records is not an application for discovery under Order 24, and the purposes under the two regimes are not the same, such ancillary or inherent jurisdiction is necessary to ensure proper compliance with the order for inspection. In general, an affirmation deposing that the document in question is not in existence or not in possession, custody or power is conclusive. In order to allow the applicant and the Court to have more ground for examining the accuracy of such affirmation, and therefore in order to ensure proper compliance with the order, it is in my view necessary that the respondent should also explain (1) whether or not the documents in question have been in existence, and whether the documents have been in possession, custody and/or power of the respondents; and (2) if they have, but they no longer are, the whereabouts and what have become of the documents. (1) is what was assumed to be the position in Ngai Chun Ngor Irene and Others v Evermore Corporation Limited and Others [2025] HKCFI 4894 at §49 per DHCJ Nick Segal. I think logically, (2) should also be the position.

17.  Second, also for the purpose of ensuring proper compliance, the Court has ancillary or inherent jurisdiction to order an affirmation that the documents produced are complete set of the requested documents.

18.  Third, a prominent reason for the director’s right to inspect documents is that a director has the responsibility and liability for the company’s conduct, both in civil and criminal. This explains why a director does not need to explain why he would like to have the inspection, subject to the respondent’s proof that the director intends to abuse the confidence and injure the company in a material way: see Ng Yee Wah v Lam Chun Wah, supra at §§29(2) and (3). Therefore, I do not accept any submissions made by Ms Mok that the Plaintiff has been redesignated away from the management of the company and therefore he should not be allowed to inspect documents now outside his purview. The starting point should still be that whatever redesignation it has been, he remains a director and therefore the responsibility and liability still attach to him, and in order properly to discharge such responsibility and liability, inspection of the company’s records is the basic.

19.  Fourth, probably corollary to the third at least in the present context, agreements such as shareholders agreements restricting the rights of the shareholders or even director’s rights to inspection should not trump the director’s right under the CO and the common law to inspect the company’s records. That said, such agreements may provide the context for the respondent to say that the application for inspection would constitute an abuse of confidence and injury to the company in a material way.

20.  Fifth, in general, the Court does not entertain unnecessary applications. In the present context, Ms Mok submits that the Plaintiff is the sole director of BBMSL, and so he is entitled to access whatever documents from BBMSL as the sole director of BBMSL, and therefore, even assuming that BBMSL’s documents are part of ABBY’s documents, the Court should not entertain the Plaintiff’s request for inspection of BBMSL’s documents. I would agree with Ms Mok if the Plaintiff has free access to BBMSL’s documents. However, as mentioned above, since 18 March 2025, the Plaintiff has been redesignated away from day-to-day operational and administrative functions of BBMSL. This suggests that the Plaintiff has no such access, and therefore, his application for BBMSL’s documents is not unnecessary.

VI.  ANALYSIS

21.  Item 1 is a document of PCG. There is no explanation as to why it would be ABBY’s document. The mere fact that PCG is a majority shareholder of ABBY does not render PCG’s document and ABBY’s document. Therefore, the Plaintiff is not entitled to request inspection of Item 1.

22.  Item 2 consists of two kinds of documents: first, any sub-tenancy or service agreement between PCG and ABBY, and second, any such agreement between PCG and BBMSL. Prima facie, the first kind is a document of ABBY. In my view, prima facie, the second kind also is. This is because, as mentioned above, by the SHA, BBMSL (as well as Yedpay HK) are managed and operated via ABBY, and therefore, prima facie, such document should be part of BBMSL’s company records. Further, the two kinds are prima facie in existence in the circumstances.

23.  In the 26 May 2026 Letter confirmed on oath, it was stated to be “do not exist”. For reason explained in §16 above, this is not sufficient. Each of the Defendants shall make an affirmation to confirm on oath whether it has been in existence, and has been in ABBY’s or his possession, custody and/or power, and if it has been, what has become of it.

24.  Item 3, seeking a written explanation in the absence of Items 1 and 2, seems to be an interrogatory rather than a request for inspection of documents. Mr Ng submits that it is not, but simply for inspection of document already in existence. With respect, on the plain reading of Item 3, Item 3 is a request for explanation for the absence of documents rather than a request for inspection of existent documents. The Plaintiff is not entitled to make such a request under the present application.

25.  The invoices issued from PCG to ABBY and BBMSL, sought in Item 4, are documents of ABBY (including those issued to BBMSL, for the same reason explained in §22 above). The 26 May 2026 Letter is insufficient in the sense that the 2^nd to 4^th Defendants have never confirmed on affirmation that the invoices produced are all the invoices (see §17 above). The 2^nd to 4^th Defendants should give such affirmation.

26.  Items 5, 29 and 32 are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above). They should be produced for inspection. It is not sufficient to give a summary of the transaction as in the 26 May 2026 Letter. There is no evidence to convince me that the inspection of the records would be abuse of confidence and injurious to ABBY, and therefore, I see no reason to limit Items 5, 29 and 32 to a summary only.

27.  Items 6-8, in so far they are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), should be produced for inspection. The answer in the 26 May 2026 Letter “not in our clients’ possession, power or control” is insufficient for the reason explained in §16 above.

28.  Item 9 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above). They should be produced for inspection. It is not sufficient to give a summary of the transaction as in the 26 May 2026 Letter. There is no evidence to convince me that the inspection of the records would be abuse of confidence and injurious to ABBY, and therefore, I see no reason to limit Item 9 to a summary only.

29.  Items 10-13 and 26 are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced for inspection. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Items 10-13 and 26, is insufficient (see §17 above). Further, Items 10 and 26 shall be subject to the clarification in §48 below.

30.  Item 14 is employment contracts between the transferred staff and PCG. The explanation for such documents is that after the staff of BBMSL are transferred to PCG, PCG is charging ABBY and/or BBMSL for the staff, and therefore, the Plaintiff is entitled to inspect the documents to see how much ABBY and/or BBMSL have been paying PCG. However, even assuming (without ruling) that such an explanation is a legitimate explanation, this does not render PCG’s document to be ABBY and/or BBMSL’s document. There is no evidence to convince me otherwise. Therefore, the Plaintiff is not entitled to request for Item 14.

31.  Items 15-16 are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above) prima facie in existence, and should be produced for inspection. The answer in the 26 May 2026 Letter “do not exist” is insufficient for the reason explained in §16 above.

32.  Item 17 is “a list of all current ABBY and BBMSL employees, including their positions, reporting lines and employing entity”. The list produced under 26 May 2026 Letter is “a list showing all existing BBMSL employees”, without any confirmation as to whether a list of ABBY employees is in existence and whether the list produced includes all the positions, reporting lines and the employing entity, if there is such a list. The Plaintiff is entitled to request inspection of such a list, if it has been in existence at all.

33.  Item 18 is documents of ABBY and BBMSL, and should be produced. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 18, is insufficient (see §17 above). Further, Item 18 shall be subject to the clarification in §48 below.

34.  Item 19 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above) prima facie in existence, and should be produced. The answer in the 26 May 2026 Letter “not in our clients’ possession, power or control” is insufficient for the reason explained in §16 above.

35.  Item 20 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced for inspection. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 20, is insufficient (see §17 above).

36.  Item 21 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above) prima facie in existence, and should be produced for inspection. The answer in the 26 May 2026 Letter “do not exist” is insufficient for the reason explained in §16 above.

37.  Items 22-23 are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced. The answer in the 26 May 2026 Letter “not in our clients’ possession, power or control” is insufficient for the reason explained in §16 above.

38.  Item 24, records showing allocation of PCG personnel’s time to work performed for ABBY and/or BBMSL, are prima facie documents of PCG. There is no evidence to convince me otherwise. The Plaintiff is not entitled to request inspection of Item 24.

39.  Item 25 is documents of ABBY, and should be produced for inspection. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 25, is insufficient (see §17 above).

40.  Item 27, insofar as the management accounts of ABBY and BBMSL are concerned, are ABBY’s documents and should be produced for inspection. However, the management accounts of Yedpay HK are not such documents. The production of the documents for 2025 and 2026 under the 26 May 2026 Letter, without saying on oath that the documents are all Item 27 except for Yedpay HK’s management accounts, is insufficient (see §17 above).

41.  Item 28 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 28, is insufficient (see §17 above).

42.  Item 30 is documents of ABBY for the same reason explained in §22 above, and should be produced. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 30, is insufficient (see §17 above).

43.  Item 31 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Item 31, is insufficient (see §17 above).

44.  Item 33 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above) prima facie in existence, and should be produced for inspection. The answer in the 26 May 2026 Letter “do not exist” is insufficient for the reason explained in §16 above. Further, Item 33 shall be subject to the clarification in §48 below.

45.  Item 34 is documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced. However, I agree with Ms Mok that on the terms of Item 34 framed in the Schedule to the Originating Summons, production of such documents via ABBY may constitute breaches of certain confidentiality under the Payment Card Industry Data Security Standard Requirements 7.1 and the Visa Core Rules. This concern has been addressed by Mr Ng’s modification by adding a qualifying phrase to the end of Item 34, namely, “except for any live merchant database, any transaction log, any system credential or any cardholder data”. Item 34 as modified should be produced for inspection.

46.  Items 35-39 are documents of ABBY (including those of BBMSL, for the same reason explained in §22 above), and should be produced. The production of the documents under the 26 May 2026 Letter, without saying on oath that the documents are all Items 35-39, is insufficient (see §17 above).

47.  Item 40 is documents of ABBY, and should be produced. Further, Item 40 shall be subject to the clarification in §48 below.

48.  Lastly, for the avoidance of doubt, in respect of Items 10, 18, 26, 33 and 40, namely, “all correspondence and communications between the A Directors”, I would think that the private correspondence and communications between the A Directors are documents of the A Directors but not documents of ABBY or BBMSL. Minutes of board meetings no doubt are such documents. However, for example, private communication among the A Directors as to how to vote at a board meeting is not such a document. Inevitably, there is some grey area, but parties may make necessary applications when dispute arises from such grey area.

VII.  CONCLUSION

49.  In conclusion, I shall not allow Items 1, 3, 14, 24, and 27 concerning Yedpay HK.

50.  I shall allow all the other Items. For Item 34, it is allowed upon the modification suggested by Mr Ng.

51.  I shall give the 1^st to 4^th Defendants 21 days for complying with the order for inspection. I shall also give liberty to apply.

52.  For costs, the Plaintiff has most of the items allowed by me. On a broad-brush approach, the Plaintiff shall have 75% of the costs with certificate for one counsel. Although ABBY does not make much submissions, it much relies on the 26 May 2026 Letter save and except for Item 34 which ABBY takes no position on. On a broad-brush approach, I think all the Defendants shall be jointly and severally liable to pay the costs.

53.  The whole costs of the Plaintiff shall be summarily assessed at HK$350,000. Therefore, 75% shall be HK$262,500.

54.  It remains for me to thank counsel for their assistance.