WONG PUI YIN GEORGEANNA (as the administratrix of the estate of WONG CECILIA PUI LUEN, deceased) v. ELITE GIANT LTD AND ANOTHER

CAMP 51 & 52/2025, [2025] HKCA 716

On An Intended Appeal From [2025] HKCFI 447

CAMP 51/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 51 OF 2025

(ON AN INTENDED APPEAL FROM HCMP NO 801 OF 2022)

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AND

CAMP 52/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 52 OF 2025

(ON AN INTENDED APPEAL FROM HCMP NO 802 OF 2022)

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(Heard Together)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  There are before the Court two renewed applications by the 2^nd Defendant for leave to appeal against a costs order made by Harris J on 24 January 2025 (the “Order”), by which the 2^nd Defendant was ordered to pay the Plaintiff’s costs of the proceedings below, to be taxed if not agreed with a certificate for counsel, leave to appeal having been refused by the Judge on 25 February 2025.

BACKGROUND FACTS

2.  The basic facts of this case have been set out by the Judge in a previous judgment dated 28 June 2023[1] and in his decision on costs dated 24 January 2025[2] (the “Costs Decision”), and will not be repeated here. The following brief summary should suffice for the purpose of the present applications.

3.  The Plaintiff is the administratrix of the estate of her deceased sister (the “Deceased”), who passed away on 18 December 2020, pursuant to letters of administration granted by the court to the Plaintiff on 4 May 2021. The Deceased was the registered shareholder and the sole director of a number of companies, including Cheer Creation Limited and Elite Giant Limited (“Cheer” and “Elite” respectively, and the “Companies” collectively).

4.  On 24 June 2022, the Plaintiff commenced, inter alia, HCMP 801 and 802 of 2022, by way of Originating Summonses against Cheer/Elite (as the 1^st Defendant) and e-Corporate Services Limited (as the 2^nd Defendant), a company secretarial services company, for:

(1)  registration of the Plaintiff as the shareholder, rectification of the register of members, and convening a general meeting of the Companies to reconstitute the boards of directors, of the Companies; and

(2)  (against the 2^nd Defendant only) “delivery up and return of all statutory books, records and other documents of the 1^st Defendant in the 2^nd Defendant’s power, possession and/or custody to the 1^st Defendant by delivering to the Plaintiff, as newly appointed director of the 1^st Defendant, forthwith”, pursuant to section 21L of the High Court Ordinance (Cap 4) and the inherent jurisdiction of the court (“OS §4”).

5.  The relief sought by the Plaintiff referred to in §4(1) above was granted by the Judge on 28 June 2023 notwithstanding the objection of Lee Chi Wang (as Intervener), who claimed to be the beneficial owner of the shares of the Companies registered in the Deceased’s name. The Intervener’s appeals against the Judge’s order of 28 June 2023 are currently scheduled to be heard by the Court of Appeal on 9 December 2025.

6.  The Plaintiff’s applications against the 2^nd Defendant for delivery up or return of documents were originally opposed by the 2^nd Defendant. In an affirmation filed by Hui Nai Yuk, August, a director of the 2^nd Defendant, on 3 June 2024 (“Hui 2”), she stated that the 2^nd Defendant was not involved in the formation of the Companies and was not the secretary of the Companies. The role of the 2^nd Defendant was limited to filling out necessary forms on the instructions of the Companies and filing them at the Companies Registry. Consistent with the above, the 2^nd Defendant was named as the “presentor” in the Annual Returns of the Companies. Ms Hui further deposed that the 2^nd Defendant had never been passed, or seen, the originals of the statutory or corporate records of the Companies. It only possessed the “raw data” of various corporate information of the Companies, and entered such data into a software called CSA Expert software. Because the 2^nd Defendant stored electronic copies of the registers complied on the instructions of the Companies via the said software, the 2^nd Defendant’s address was stated in the Form NR2 dated 27 February 2017 and the Annual Return made up to 28 June 2020 as the location at which the Company’s registers/corporate records were stored. The Plaintiff’s claims against the 2^nd Defendant were “baseless” and should be dismissed.

7.  On 15 July 2024, the Plaintiff filed her 3^rd affidavit and contended that some of the explanations given in Hui 2 was untrue. It is unnecessary to go into the Plaintiff’s contention for the purpose of these applications.

8.  On 10 September 2024, the 2^nd Defendant delivered up to the Plaintiff a “suite of corporate documents belonging to the Companies” (see §2 of the Costs Decision). The Plaintiff considered that she had obtained substantially what she sought from the 2^nd Defendant in the Originating Summonses, and discontinued the proceedings against the 2^nd Defendant in October 2024, leaving the issue of the costs of the proceedings outstanding between them.

9.  In the Costs Decision, the Judge found that the Plaintiff was justified in issuing the Originating Summonses and the Plaintiff had obtained substantively what she sought to achieve. The Judge also considered that:

(1)  The 2^nd Defendant allowed itself to be described as the presenter of various documents of the Companies filed at the Companies Registry, and its address to be stated on those documents as the location of the Companies’ registers/corporate records. It therefore invited the assumption that it held the documents sought in the Originating Summonses.

(2)  The 2^nd Defendant’s position was not made clear until the filing of Hui 2 on 3 June 2024[3].

(3)  The 2^nd Defendant’s suggestion that the Originating Summonses were not caused by the public records because the pre-action letters did not mention them was specious at best.

Accordingly, the Judge made an order that the 2^nd Defendant should pay the Plaintiff’s costs of the proceedings below.

10.  The 2^nd Defendant’s subsequent applications for leave to appeal against the Order were refused by the Judge for the reasons set out in a decision dated 25 February 2025[4] (the “Leave Decision”).

THE PRESENT APPLICATIONS

11.  By summonses taken out on 11 March 2025 (the “Summonses”), the 2^nd Defendant renews its applications for leave to appeal against the Order. The 2^nd Defendant’s intended grounds of appeal have been distilled into three “main grounds” in the Statement in Support of Application for Leave to Appeal dated 11 March 2025, as follows:

(1)  the Judge made an error of law in failing to direct himself that, as the only substantive relief sought by the Plaintiff against the 2^nd Defendant was the production of documents, the proper exercise of his discretion would be to require the Plaintiff to pay the 2^nd Defendant’s costs, including the costs of making the disclosure, even if the proceedings achieved what the Plaintiff sought to achieve (“Ground 1”);

(2)  the Judge wrongly held that the Plaintiff had substantively obtained what she sought to achieve, in that the draft documents produced by the 2^nd Defendant were not the “statutory books, records and other documents” of the Companies in the 2^nd Defendant’s “power, possession and/or custody” (“Ground 2”); and

(3)  the Judge failed to take all relevant matters into account when exercising his discretion on costs, in particular the Judge overlooked the fact that: (i) as of the date of the Originating Summonses, the Plaintiff was not a director of the Companies and had no right to seek discovery directly against the 2^nd Defendant, and (ii) the Plaintiff’s third affidavit was made unnecessarily and the Plaintiff should at least have been held solely responsible for the costs after the filing of Hui 2 on 3 June 2024 (“Ground 3”).

DISCUSSION

12.  A costs order is quintessentially an exercise of discretion by a judge. An applicant for leave to appeal against such an order faces a very high hurdle. The Court of Appeal will not interfere with a judge’s decision on costs unless it is wrong in principle or the exercise of discretion by the judge is plainly wrong: see KK, H v PK, H [2023] HKCA 176, at §24. Further, unless it can be shown that a judge has committed a palpable error in the exercise of the discretion on costs, the mere fact that the Court of Appeal would not have exercised the discretion in the same manner as the judge is not a sufficient ground to warrant interference with the decision of the judge: see Industrial and Commercial Bank of China (Asia) Limited v Tse Ching [2022] 5 HKLRD 284, at §27.

13.  By way of preliminary observation, we note that the 2^nd Defendant has failed to inform the Court that Ground 1 and some of the points raised in Ground 3 were not advanced before the Judge, whether in the submissions leading to the Costs Decision or in the submissions leading to the Leave Decision. The 2^nd Defendant has also failed to provide any explanation why they were not argued before the Judge or why they should now be entertained by this Court. This is in breach of §11 of Practice Direction 4.1, which states that:

“An applicant in a renewed application for leave should inform the Court whether the points argued in connection with the grounds of appeal had been canvassed at the substantive hearing and the application for leave to appeal in the court below. If not, the applicant must explain why it was not argued then and why it should now be entertained by the Court.”

14.  In the Plaintiff’s Written Statement dated 26 March 2025, Mr Byron Chiu argues that the 2^nd Defendant’s new points should, for this reasons, be rejected in limine.

15.  There is no rigid rule that a breach of §11 of Practice Direction 4.1 must entail the consequence of rejection of a new argument without consideration of its merits. Whether the Court of Appeal should entertain such an argument depends on the circumstances. For example, where the argument is that a judge erred in law or principle, the Court of Appeal may come to the view that no injustice which could not be remedied by an appropriate order as to costs would be suffered by the other party as a result of the new argument being entertained, and permit the new argument to be run. On the other hand, where a new argument is to the effect that a judge failed to take into account some relevant matter(s) in the exercise of his/her discretion, the Court of Appeal should be slow in entertaining such an argument. This is because, had the point been taken before the judge at the substantive hearing, he would have an opportunity to consider it and give it such weight as he considered appropriate in the circumstances of the case. For the Court of Appeal to entertain the new point on appeal for the first time would mean not only that the Court of Appeal would be deprived of the benefit of the judge’s view on the point, but also that the Court of Appeal would, effectively, be exercising the discretion afresh, instead of considering an appeal against an exercise of discretion by the judge. This is not the proper function of the Court of Appeal. We will return to the relevance of this discussion when we consider the three intended grounds of appeal raised by the 2^nd Defendant.

16.  As for Ground 1, Mr Colin Wright (for the 2^nd Defendant) argues that where the production of documents is the only substantive relief sought against a party, an applicant seeking the documents should normally bear the costs of the party producing the documents, including the costs of making the disclosure. This is so even if the application for the production of the documents is completely successful. Mr Wright refers this Court to Liu Hua v Dr Lau Chu Pak [2023] 5 HKLRD 425, at §54, and Wong To Yick Wood Lock Ointment Ltd v Bkip Ltd [2023] HKCFI 693, at §14, in support of his argument. Since Ground 1 raises an issue of principle, we are prepared to allow the 2^nd Defendant to rely on this ground notwithstanding the fact that it was not advanced before the Judge.

17.  In our view, Mr Wright has stated the relevant proposition too widely. It is not the case that whenever an applicant seeks as the only substantive relief against a party the production of documents, he should normally bear the costs of the application even if the application is successful. Liu Hua related to third party discovery under s 42 of the High Court Ordinance/Order 24 rules 7A and 8 of the Rules of the High Court, while Wong To Yick Wood Lock Ointment Ltd related to a Norwich Pharmacal order. In both cases, the person from whom discovery was sought was asked to give discovery to assist the applicant in a claim or intended claim against a third party, and that person was otherwise not under any obligation to give discovery to the applicant. The position is different where the person from whom discovery is sought owes a legal obligation to the applicant to produce documents or provide information independent of any claim that the applicant may have against a third party. The failure or refusal by that person to do so is a breach of his obligation, and the applicant may enforce the obligation by an ordinary civil action. The court should apply the normal principles when considering the question of costs in such an action.

18.  In the present case, as pointed out by the Judge at §5 of the Leave Decision, the documents sought by the Plaintiff on behalf of the Companies under OS §4 related to or included documents or records that were the property of the Companies. The Judge also considered the 2^nd Defendant’s argument to the contrary to be “entirely artificial”. This is not a case where the Plaintiff seeks discovery of documents from the 2^nd Defendant to assist her in a claim or intended claim against a third party. The 2^nd Defendant was under a legal obligation to return the documents and records to the Companies, and the actions brought by the Plaintiff were to enforce such an obligation. We do not consider the principle in Liu Hua and Wong To Yick Wood Lock Ointment Ltd to be applicable in the present case. We shall return to the relevance of the fact that the causes of action for recovery of the document and records were vested in the Companies instead of the Plaintiff in our discussion of Ground 3 below.

19.  In relation to Ground 2, the Judge has already dealt with it twice, at §5 of the Costs Decision and again at §5 of the Leave Decision. In gist, the Judge held that the reference to “other documents” in OS §4 included documents and records belonging to the Companies sought by the Plaintiff on its behalf. We agree with the Judge’s view, and consider that Ground 2 has no reasonable prospect of success.

20.  Finally, in respect of Ground 3, the first matter that the 2^nd Defendant says the Judge overlooked is that, as of the date of the Originating Summonses, the Plaintiff was not a director of the Companies and had no right to seek discovery directly against the 2^nd Defendant. It was said that the Plaintiff took an “unacceptable short cut” with the Originating Summonses. For the reasons mentioned in §15 above, we do not consider the 2^nd Defendant should be permitted to rely on this point in the present applications. For the sake of completeness, we would briefly explain why we do not consider it has merits in any event.

21.  The Judge granted the relief sought by the Plaintiff to put her as the only registered shareholder, and reconstitute the boards of directors, of the Companies on 28 June 2023. The 2^nd Defendant handed over the documents and records of the Companies to the Plaintiff on 10 September 2024, and the Costs Decision was given on 24 January 2025. The Companies were parties to the Originating Summonses from the very beginning, and the Plaintiff’s claims against the 2^nd Defendant had always been for the delivery up and return of all statutory books, etc, “to the [Companies] by delivering to the Plaintiff …”. Had the point about the Plaintiff’s lack of standing to make the claims been taken before the Judge when the issue of costs was being argued before him, the Judge might well have joined the Companies as additional plaintiffs in the Originating Summonses (whether upon the Plaintiff’s application or on the Judge’s own motion), and the technical point now raised by the 2^nd Defendant would have no leg to stand on.

22.  The second matter that the 2^nd Defendant says the Judge overlooked is that the Plaintiff’s 3^rd affidavit was made unnecessarily and the Plaintiff should at least have been held responsible for the costs after 3 June 2024 when Hui 2 was filed. The short answer is that, notwithstanding Hui 2, the 2^nd Defendant did not deliver up the documents and records of the Companies until 10 September 2024, which was after the filing of the Plaintiff’s 3^rd affidavit on 15 July 2024. We do not accept that the Plaintiff’s 3^rd affidavit was made unnecessarily as alleged by the 2^nd Defendant. In the Leave Decision, the Judge considered the issue of whether or not the Plaintiff should have reached its decision to discontinue the applications earlier, and took the view that the Plaintiff’s decision was reasonable. We see no sufficient basis to disagree with the Judge’s assessment on this matter.

23.  All three intended grounds of appeal have no merit. The 2^nd Defendant’s intended appeals have no reasonable prospect of success. There is also no other reason in the interests of justice why the appeals should be heard.

DISPOSITION

24.  The applications for leave to appeal are refused, and the Summonses are dismissed with costs to the Plaintiff, to be summarily assessed. The costs sought by the Plaintiff in her Statement of Costs for Summary Assessment dated 26 March 2025, in the total sum of HK$59,620, appear to us to be by and large reasonable, and are allowed in full. The above costs order, including the assessment of costs, is an order nisi, which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.

25.  Lastly, as the leave applications are in our view wholly without merit, we further order, pursuant to Order 59 rule 2A(8) of the Rules of the High Court, that no party may request the present determination to be re-considered at an oral hearing inter partes.