HIGH FASHION NEW MEDIA CORPORATION LTD v. LEONG MA LI

HCMP 108/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 108 OF 2016

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D E C I S I O N

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APPLICATION

1. I have before me a summons (“the Summons”) taken out by the plaintiff on 24 June 2016 seeking an order that the defendant do within 7 days produce for inspection by the plaintiff the original bank statements of the bank accounts which Longford Information and Technology Co Ltd (“Longford”) maintains with ICBC Shanghai, exhibited as “LML-1” and “LML-4” to the affirmation of the defendant filed herein on 11 April 2016, and permit the plaintiff to take copies thereof.

Background facts

2. On 18 November 2015, the defendant gave an undertaking to the court in another proceedings, namely, HCA 1953/2014, in the following terms:

“to use her best endeavour to provide all the bank statements and/or bank passbooks of all bank accounts (including but not limited to the capital bank account which [Longford] maintains with ICBC Shanghai (account no.1001201629016236908)) held by [Longford] with ICBC Shanghai (‘the Longford Accounts’) since the opening of the Longford Accounts up to the latest bank statements and/or bank passbooks to the Plaintiff for inspection within 14 days of the court’s order”.

3. There is no dispute that the bank documents referred to in the undertaking were not provided by the defendant within 14 days of the court’s order (ie, on or before 2 December 2015).

4. On 4 January 2016, the plaintiff applied for leave to make an application for an order of committal against the defendant pursuant to Order 52, rule 2(1) of the Rules of the High Court, Cap 4.  On 5 January 2016, the court granted the leave sought by the plaintiff.  On 14 January 2016, the plaintiff took out the originating summons herein seeking an order of committal against the defendant.

5. On 11 April 2016, the defendant filed an affirmation to resist the order of committal sought by the plaintiff.  In that affirmation, the defendant explained why she was unable to provide the bank documents referred to in the said undertaking on or before 2 December 2015,  and set out details of the effort that she had made to obtain those documents.  It is not necessary for me to summarise the steps that she allegedly took to obtain the documents, which are matters to be further examined at the substantive hearing of the originating summons, save to mention that, according to the defendant:-

(1) towards the end of March 2016, her staff, one Zhang Hongmin, managed to locate some bank statements relating to the Longford Accounts on a piecemeal basis, which the defendant exhibited as “LML-4” to her affirmation; and

(2) on 11 April 2016, she managed to obtain from ICBC Shanghai some further bank statements relating to the Longford’s Accounts, which she exhibited as “LML-1” to her affirmation.

6. Upon perusal of the said exhibits, the plaintiff found that some pages were missing, and some pages were illegible.  By letters dated 11 April 2016 and 26 April 2016 respectively from the plaintiff’s solicitors to the defendant’s solicitors, the plaintiff requested for (inter alia) inspection of the bank statements.  I am told that there was no reply to the plaintiff’s request for inspection of the documents.  Accordingly, the plaintiff made the present application by summons on 24 June 2016.

DISCUSSION

7. Order 24, rule 10(1) of the Rules of the High Court provides that:-

“Any party to a cause or matter shall be entitled at any time to serve a notice on any other party in whose pleadings, affidavits or witness statements served under Order 28, rule 2A, or experts’ reports, reference is made to any document requiring him to produce that document for the inspection of the party giving the notice and to permit him to take copies thereof.”

8. Prima facie, the defendant is required under this rule to produce the documents exhibited as “LML-1” and “LML-4” to her affirmation for inspection and copying by the plaintiff.

9. This morning, Mr Samuel Sung has, on behalf of the defendant, raised 3 grounds to object to the plaintiff’s application.

10. First, it is said that the bank statements in question are irrelevant to the matters in dispute in the present committal proceedings, because the question of whether the defendant failed to use her best endeavour to provide the bank documents referred to in her undertaking should be judged by reference to the cut off date of 2 December 2015, and any act or conduct on her part subsequent to that date is not relevant.  In my view, this is a very narrow way of looking at the matter.  By virtue of her undertaking, the defendant was required to use her best endeavour to provide the bank documents to the plaintiff for inspection on or before 2 December 2015.  It is her case that although she failed to meet the deadline, she had tried her best to obtain the documents which she managed to do only towards the end of March 2016 (in relation to “LML-4”) and on 11 April 2016 (in relation to “LML-1”).  Her conduct throughout the period from the date of the order (18 November 2015) to the date of production (11 April 2016) is plainly relevant to the inquiry whether she had used her best endeavour to comply with her undertaking.  Anyhow, it is not open to her to say that her conduct and documents produced after 2 December 2015 are irrelevant because she referred to them in her own affirmation filed on 11 April 2016.

11. Second, Mr Sung argues that Order 24, rule 10(1) is inapplicable because the affirmation made by the defendant on 11 April 2016 was not served on the plaintiff under Order 38, rule 2A.  This, in my view, involves a misreading of Order 24, rule 10(1), in that the reference to Order 38, rule 2A in that rule relates only to “witness statements” but not “affidavits”.

12. Third, Mr Sung says that the defendant is not a compellable witness and therefore has no duty to produce the “original” bank statements to the plaintiff. Granted that the defendant is not a compellable witness in these committal proceedings, the fact remains that she chose to file an affirmation to resist the application for a committal order against her.  That being so, the provisions in Order 24, rule 10(1) are applicable to her affirmation.  In the course of the hearing, there is some debate on whether the defendant is required to produce the “original” bank statements, and it is said that the defendant only has original “reprints” provided by the bank in so far as “LML-1” is concerned.  In my view, it is plain that what the plaintiff is seeking, and what the defendant is required to produce, under Order 24, rule 10(1) are the originals that she actually obtained from the bank.

DISPOSITION

13. I see no reason why the documents sought by the plaintiff should not be produced by the defendant under Order 24, rule 13(1).  I therefore make an order in terms of paragraph 1 of the Summons, save that (i) the time for compliance shall be changed to 14 days instead of 7 days, and (ii) the time and place of inspection shall be during such office hours as may be specified by the defendant’s solicitors and at the office of the defendant’s solicitors in Hong Kong.

14. For the avoidance of doubt, the original documents which the plaintiff shall be entitled to inspect and take copies of are only those exhibited as “LML-1” and “LML-4” to the defendant’s affirmation filed on 11 April 2016.  If the plaintiff wishes to seek discovery of other missing documents, such application would have to be pursued separately.

15. I shall hear the parties on the question of costs.