XCHRX TANG MAN KIT AND ANOTHER v. HIP HING TIMBER CO. LTD.

HCA 8000/1990

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 8000 OF 1990

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R U L I N G

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1. This is an application by the Defendant for an Order that unless the Plaintiff do make and file an affirmation in compliance with para. 2 of my Order dated 24 May 2000 by 4.00 pm on Monday 12 June 2000, this action be dismissed with costs.

2. The summons was due to have been heard this morning at 9.30, 12 June 2000. However, as a result of the black rainstorm warning this morning, the matter had to be adjourned until 3.30 in the afternoon today. Therefore, any reference to anything required to be done by 4.00 pm today has been overtaken by events.

3. The matter arises in this way. I shall not repeat that part of my Reasons for Decision handed down on 25 May 2000 which deals with the background to the present action. The Defendant has been occupying some land in the New Territories registered under the name "Wah Yan Mo Fan Heung" and in 1990, the present proceedings were instituted by, amongst other persons, Mr Tang Man Kit as one of the managers of Wah Yan Mo Fan Heung.

4. One of the main matters in dispute is the capacity of Mr Tang Man Kit to act as manager of Wah Yan Mo Fan Heung. That is due to a dispute between the parties as to exactly what "Wah Yan Mo Fan Heung" is.

5. On 24 May 2000, I ordered, amongst other things, that the Plaintiffs do within 14 days make and file an affirmation stating whether they have or have at any time had in their possession, custody or power the documents or classes of documents specified in the order, and if the said documents or any of them has or have been but is or are not now in their possession, custody or power, stating when they parted with the same and what has become of the same. The documents or classes of documents were:-

(a) all registers, lists and records of the members of Wah Yan Mo Fan Heung;

(b) all documents of transfer or transmission and other documents relating to the transfer, transmission or devolution of the shares or rights and interests of the original members of the Heung to the alleged present members of the Heung; and

(c) the constitution or charter of the Heung.

In purported compliance with this order, there was filed on 7 June 2000 (the last day for filing) an affirmation of Mr Wong Chor Wan who is the solicitor for the purported present managers Mr Tang Man Kit and Mr Foo Tak Ching.

6. In my view, it is not sufficient for the solicitor for the purported managers to make and file an affirmation. This is an affirmation pursuant to an order under Order 24 rule 7 for specific discovery. It is clear that under Order 24 rule 5, the mandatory form 27 of the Rules of the High Court specifies that the affirmation deposing to a list of documents should be sworn by the party personally. This is also affirmed by the Court of Appeal in Landauer v. Cumins & Co., [1991] the Times August 7.

7. In the present case, in my view, not only is it implied but it is also express that the affirmation in support of the list should be sworn by the parties personally, in other words, either Mr Tang Man Kit or Mr Foo Tak Ching or both of them.

8. I say it is implied because if it is a requirement under Order 24 rule 5 that the affirmation in support of a list should be sworn by the parties personally and not by solicitors or agents, then all the more reason when the order is made for an order of specific discovery, (in other words to complement the original inadequacies) that that affirmation in support of the new list should also be filed by the parties personally.

9. Further, in my view, it is also expressly so because the Order that I made on 24 May was that the Plaintiff do make and file an affirmation. In other words, that makes it also clear that the obligation is of the Plaintiff personally, consistently with the requirement under Order 24 rule 5.

10. Accordingly, in my view, the affirmation filed by Mr Wong Chor Wan is inadequate. No reason was given why Mr Foo could not make the affirmation. It is said that Mr Foo would only be making an affirmation on hearsay evidence because he would not have adequate personal information. That may be the case. But it remains that Mr Foo, who is purporting to be manager of Wah Yan Mo Fan Heung, is the party and therefore the affirmation should be made by him even if Mr Tang Man Kit is not available because he is not in Hong Kong.

11. Further, it would appear to me that the contents of Mr Wong's affirmation leaves something to be desired. He refers, for example, at para. 3 of his affirmation, that the list was first prepared in or around September 1984 when there was a meeting called to appoint Wong Pui as one of the managers of the Heung. According to Mr Tang Man Kit, the members of the Heung all brought along with them their share certificate to attend the meeting and according to Mr Tang, Wong Tat To confirmed the status of these members by checking the names appearing in the share certificates with the counterfoils kept by the Heung.

12. Therefore, it would certainly appear to be the case that the precursor of the list in 1984 were the counterfoils which apparently had been kept by Wong Tat To. It would appear to me that clearly these counterfoils would be one of the documents which ought to have been disclosed.

13. In view of the fact that Mr Tang is not in Hong Kong and in view of the fact that according to Mr Koo, the counterfoils would need some care before photocopies can be properly made, I would give sufficient time for the Plaintiffs to make proper discovery of this and possibly other documents and for a proper affirmation in support to be sworn and filed. I will therefore give the Plaintiffs until 4.00 pm on Thursday to make proper discovery and to make and file an affirmation in support.

14. I will not for the present moment make this an "unless" order because it may be the case that logistics would be sufficiently difficult for the Plaintiffs not to be able to comply with that time limit. However, both parties, I am sure, are aware that the hearing is imminent, the hearing being scheduled for 4 days starting next Monday 19 June. Therefore the Court would expect that all parties would deal with these matters with the utmost expedition.