MIMI KAR KEE WONG HUNG v. SEVERN VILLA LTD AND OTHERS

HCMP 2192/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2192 OF 2011

(ON AN INTENDED APPEAL FROM HCMP 243/2011 AND HCMP 522/2011)

____________________

HCMP 243/2011

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DECISION

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Hon Kwan JA:

1.  This is an application for leave to appeal an interlocutory order made by Deputy Judge Carlson on 24 October 2011. The applicant and intended appellant is Mimi Kar Kee Wong Hung (“Ms Wong”). The respondents are Severn Villa Limited (“SVL”) and Applied Development Holdings Limited (“ADHL”). Ms Wong is the plaintiff and SVL and ADHL are the 1^st and 2^nd defendants in HCMP 243/2011. SVL and ADHL are the 1^st and 2^nd plaintiffs in HCMP 522/2011 and Ms Wong is the defendant. HCMP 243/2011 and HCMP 522/2011 have been consolidated by the Judge on 7 June 2011. Ms Wong was ordered to be the plaintiff in the consolidated proceedings, and SVL, ADHL and Raymond Kin Sang Hung (“Raymond Hung”) were ordered to be the 1^st, 2^nd and 3^rd defendants respectively. Raymond Hung does not take part in the present application.

2.  Both parties have lodged a total of four box files in this application. This court has power to determine the application on the basis of written submissions only without a hearing. I consider it appropriate to adopt this course, as the issues for resolution are relatively simple and have been presented clearly in the written submissions in the court below and in the summary written arguments to this court.

The background

3.  Ms Hung and Raymond Hung used to be married and they founded Applied Electronics Limited, the original holding entity of the electronics business which has become the listed group of companies led by ADHL since 1989. Ms Wong had served as the chairman and an executive director of ADHL from May 2005 to June 2010 and Raymond Hung has been the managing director from 1988 to April 2011.

4.  In 1989, a plot of land in Santa Monica, California was purchased and four townhouses were constructed on the land. Ms Wong was the registered owner of the landed property in Santa Monica (“the Santa Monica Property”).

5.  In 2001, the Santa Monica Property was sold at a profit. A substantial part of the proceeds of sale were used to acquire four units in Severn Villa at No. 3 Severn Road, Hong Kong (“the SV Investment Properties”). The balance of the purchase price was funded by mortgage loans obtained from banks. SVL is the registered owner of the SV Investment Properties. It is a wholly owned subsidiary of ADHL. Since 2003, Ms Wong has resided in two of the units of the SV Investment Properties (“the Severn Road Property”).

6.  In 1999 Ms Wong petitioned for divorce in FCMC 1802/1999 and a decree nisi was granted in June that year. The parties executed a deed of divorce dated 20 November 2001. Notwithstanding that deed, final resolution of their respective financial shares in the matrimonial estate has yet to be determined. In August 2010, Ms Wong and Raymond Hung obtained an order by consent for the ancillary relief proceedings in FCMC 1802/1999 to be transferred to the High Court in HCMC 9/2010. The Judge has characterised this as very hostile litigation from the start with nobody prepared to give any quarter[1].

7.  In December 2010, SVL and ADHL served a notice to quit on Ms Wong giving her one month to vacate the Severn Road Property.

8.  In January 2011, Ms Wong applied to join SVL and ADHL as parties to the application for ancillary relief in HCMC 9/2010 with a view to have the beneficial ownership of the Severn Road Property determined. This was opposed by SVL and ADHL. On 18 February 2011, she issued the originating summons in HCMP 243/2011 seeking declarations that she is the beneficial owner of the Severn Road Property under a constructive or resulting trust, notwithstanding that the legal title is in the name of SVL. How this issue is to be determined would affect an important asset of a publicly listed company and delay in resolving this may result in ADHL being de-listed[2].

9.  On 25 March 2011, SVL and ADHL issued the originating summons in HCMP 522/2011, seeking a possession order directed to remove Ms Wong from her residence at the Severn Road Property.

10.  The two originating summonses were scheduled to be heard over two days on 8 and 9 June 2011.

11.  On 11 May 2011, Ms Wong filed her affirmation in reply and her solicitor Mr Glynn also filed an affidavit. The contents of these affidavits challenged the whole basis of ADHL and SVL’s claim for possession. As there would need to be cross-examination on the affidavits filed, the trial of the two originating summonses could not proceed in June.

12.  On 7 June 2011, the Judge gave a number of case management directions to deal with the escalation of the factual dispute. He consolidated HCMP 243/2011 and HCMP 522/2011 and joined Raymond Hung as the 3^rd defendant in the consolidated proceedings. Following the procedure in TL v ML [2006] 1 FLR 1263 where the ownership of property by a third party is affected by an ancillary relief application, he directed that the consolidated proceedings should be heard and determined first, as the outcome of who is the beneficial owner of the Severn Road Property would have a very important impact on the ancillary relief application. Hearing dates over 16 days in October and November 2011 were provided for the trial of the consolidated proceedings, with tentative dates fixed in March 2012 for the hearing of the ancillary relief application.

13.  The Judge also directed the parties to serve pleadings in the consolidated proceedings, as if the proceedings were commenced by writ. He made directions for the filing of further trial affirmations and the further discovery of documents. As the Judge has remarked, the case has grown to become so unrecognisable from what had been expected in March 2011 when two days in June were provided for the hearing of the originating summonses[3].

14.  The factual disputes as summarised by the Judge[4] are along these lines.

15.  Ms Wong has alleged that in 1989, her brother, then a building contractor in Los Angeles, told her of a building plot in Santa Monica for development. She put down a deposit of US$25,000 using her personal cheques. The balance of the purchase price of US$825,000 was paid by her by means of loans advanced to her by ADHL or one of its subsidiaries. Four townhouses were built in the early 1990s. Again this was done by further loans advanced to her by ADHL or one of its subsidiaries. The townhouses were rented out at first and sold at a profit in 2001. A substantial part of the proceeds of sale, having been channelled back into the ADHL group, were used to purchase the SV Investment Properties.

16.  For their part, SVL and ADHL (supported factually by Raymond Hung) have alleged that all the purchase and construction funds for the Santa Monica Property were provided by the ADHL group, and when the Santa Monica Property was sold, the proceeds came back into the group. The SV Investment Properties were purchased as an investment by ADHL through SVL and it was financed by a combination of cash provided by the group and a substantial balance was raised on mortgage. There was never any loan to Ms Wong. Although the Santa Monica Property may have been purchased through her, this was done by her for the ADHL group which she and Raymond Hung controlled and were directors of. The purchase of the SV Investment Properties was a separate investment and a part of it, namely, the Severn Road Property, was provided to Ms Wong as a residence as part of her benefits as an executive director of ADHL.

17.  Given the parties’ respective stances, the internal accounting treatment by ADHL of the funds used for the acquisition of the Santa Monica Property and the proceeds of sale from this property, and the manner in which such proceeds were channelled towards the acquisition of the SV Investment Properties is important for the resolution of the disputes in the consolidated proceedings.

18.  On 19 September 2011, Ms Wong filed a summons for specific discovery seeking documents containing records of directors’ current accounts of ADHL from 1989 to 2010 in respect of all credit or loan transactions involving Ms Wong, Raymond Hung and/or the two of them jointly and all documents containing records of inter-company current accounts from July 2001 to 2010 between ADHL and three of its subsidiaries including SVL. In response thereto, SVL and ADHL served on Ms Wong the third affirmation (“Ng III”) of Ng Kit Ling (“Tess Ng”). Tess Ng is the company secretary and financial controller of ADHL.

19.  The Judge heard this application for specific discovery on 23 September 2011 and delivered his decision on 30 September[5], ordering SVL and ADHL to disclose within seven days all the ledgers up to 2006 of the trial balances of all the companies that had already been disclosed, insofar as these relate to transactions involving Ms Wong and Raymond Hung.

20.  On 28 September 2011, SVL and ADHL served on Ms Wong the fourth affirmation (“Ng IV”) of Tess Ng for use at the trial commencing in October 2011.

21.  It was about two weeks before the scheduled start of the trial that 45 lever arch files with a “D” prefix which run to 12,161 pages were disclosed to Ms Wong. [6]

22.  As the Judge has noted, overwhelmingly, the discovery has come from SVL and ADHL. Their case is that the documents serve to prove there never were any loans by the group to Ms Wong[7]. Whilst SVL and ADHL have provided very substantial disclosure in terms of paper – most of the over 15,000 pages in the “B” and “D” bundles – many have redactions. Tess Ng has gone on oath to depose that they are redacted because those advising them have decided that the redacted entries are not relevant to the issues to be tried[8].

23.  By agreement, 6 October 2011was used as a pre-trial review and the trial was put over to 17 October. On 14 October, Ms Wong issued her summons (“the Expert Evidence Summons”) returnable on 17 October seeking to exclude the entirety of Ng III and Ng IV on the ground that these affirmations amount to expert accounting evidence for which no leave has been given under Order 38 rule 36 of the Rules of the High Court, alternatively for leave to Ms Wong to call an accounting expert of her own[9].

24.  On 19 October 2011, Ms Wong issued another summons (“the Disclosure Summons”) returnable on 20 October requiring SVL and ADHL to file and serve within seven days (a) a further and better list of documents disclosing all accounting records of ADHL and its subsidiaries “whose accounting records are addressed” in Ng III and/or Ng IV from 1 January 2000 to 30 June 2006; (b) unredacted copies of all redacted accounting documents that have been provided for inspection and/or that have been exhibited in affirmations which have been filed and served on behalf of ADHL; and (c) an affirmation or affidavit from a responsible officer of ADHL verifying the further and better list and compliance with the above orders.

25.  The Judge heard argument on the Expert Evidence Summons and the Disclosure Summons over two days. What was meant to be the first week of the trial was taken up by the hearing of these and other interlocutory applications, all taken out at the last minute. In the end, the trial of the consolidated proceedings was adjourned to be heard before another judge[10], with a revised 20-day estimate and a further five days reserved.

26.  On 24 October 2011, the Judge gave his decision and dismissed the Expert Evidence Summons and the Disclosure Summons. Costs of both summonses were awarded to the defendants in any event to be taxed on a party and party basis. These orders formed the subject of Ms Wong’s intended appeal.

The application for leave to appeal

27.  The Judge refused leave to appeal to the Court of Appeal on 31 October 2011. He is completely satisfied that Ng III and Ng IV do not amount to expert evidence, nor is it necessary for Ms Wong to call her proposed expert Mr John Lees to give expert accounting evidence. As for further discovery, the Judge has borne in mind the narrowness of the issue to be resolved in the consolidated proceedings. The complaint as to the redactions, although understandable in the sense that it is not fanciful, is not enough to justify leave being given. In any event, the Judge has taken the view the fact that the accounts have been audited and Ms Wong was the chairman and director of the ADHL group when the accounts were approved must provide her with sufficient protection and he is satisfied that in such circumstances a fair trial will be possible. For the above reasons, the Judge is not satisfied that the intended appeal regarding the Expert Evidence Summons and the Disclosure Summons would have a reasonable prospect of success and he refused leave to appeal[11].

28.  Ms Wong renewed her application for leave to appeal by the summons issued in the present proceedings on 2 November 2011, coupled with a draft Notice of Appeal.

The principles on granting leave to appeal

29.  The principles on granting leave to appeal are well established. Leave can be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard[12]. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”[13]. As the leave requirement was introduced largely to address satellite litigation on interlocutory issues which almost invariably gives rise to major delay and expense, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient[14] .

30.  Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion[15]. The court may refuse leave to appeal in the interests of procedural economy and proportionality[16].

31.  It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the trial judge. Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”[17], or if the judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”[18]. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible[19].

The Expert Evidence Summons

32.  The arguments advanced on behalf of Ms Wong to this court are basically the same as the arguments made to the Judge. Mr Barlow, SC has cited additional authorities to support his contentions.

33.  The essential question here is whether Ng III and Ng IV constituted expert evidence.

34.  Ng IV comprised 59 pages of text and four box files of exhibits. Ng III is shorter and has seven pages of text and 138 pages of exhibits. A summary of their contents was given in the submissions of Mr Bleach, SC for SVL and ADHL[20]. Like the Judge, I have read closely Ng III and Ng IV.

35.  At the hearing before the Judge, Mr Barlow contended that the whole of Ng III and IV was expert evidence. This is plainly not the case. The latter part of Ng IV from page 42 (paragraphs 160 onwards) dealt with matters that are by and large within Tess Ng’s personal knowledge and cannot be regarded as any kind of expert evidence.

36.  There are minor parts of Ng IV which Mr Bleach has conceded in the hearing below to be inadmissible, as these parts contain opinion, impermissible comment, speculation or submissions[21]. These minor parts can be put to one side because they do not affect the substance of the affidavit[22].

37.  Mr Barlow complained that what Ng III and Ng IV sought to do was to have a witness who is a qualified accountant present a detailed and extensive analysis of ADHL’s accounting records and financial statements, in support of a partisan advocate’s opinion and based on items selected in a partisan manner. He emphasised that Tess Ng has no personal knowledge of the transactions concerned as she had only joined ADHL in 2005, and yet she proceeded to set out her opinions, as a qualified accountant, as to how the court should interpret the books and records of ADHL and other subsidiaries regarding those transactions and the conclusions she suggests should follow from those opinions.

38.  Mr Barlow pointed out that apart from expert evidence of opinion upon facts adduced before the court, there are other categories of non-opinion expert evidence relevant to the present situation, such as expert evidence to explain technical subjects; and evidence of fact given by an expert, the observation, comprehension and description of which require expertise[23]. Expert evidence is admissible whenever the subject matter of inquiry is such that non-experts are unlikely to prove capable of forming a correct judgment upon it without such assistance, in other words, “when it so far partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it”.[24]Applying these principles, he submitted that Ng III and Ng IV clearly come within the scope of expert forensic accounting evidence.

39.  Furthermore, he contended that Ng III and Ng IV should be ruled inadmissible because they contravened the elementary principle that the facts upon which opinion evidence is based must be proved by admissible evidence before the court and available to all parties, and if the opinion relies on assumptions they must be verified[25]. Here, Mr Barlow complained that incomplete financial records were disclosed by the defendants with many redactions in the documents disclosed. Ms Wong’s forensic expert, Mr John Lees, has advised that he cannot verify Ng III and Ng IV upon the accounting records disclosed to date[26]. Mr Barlow contended that this would render a fair trial impossible and it is a breach of natural justice for the court to rely on evidence which is kept from one of the parties.

40.  The Judge has ruled that Ng III and Ng IV did not constitute expert evidence and what the deponent did was merely to describe the relevant features of various accounting documents and records that she had reviewed[27]. In the submissions of Mr Barlow made to this court and below, he has not identified any specific parts of these affirmations which he alleged to be expert evidence.

41.  There is no basis for suggesting that the Judge has misunderstood the law or the evidence in Ng III or Ng IV or was plainly wrong in holding that these affirmations did not constitute expert evidence. As the Judge has ruled, these affirmations are factual; they are just a guide and a page-turner through the numerous pages of financial documents and records that are referred to. What the deponent did was to distil the facts as they appeared from those documents and records and then described them in a way which may be useful and helpful to the court. This is not evidence which “partakes of the nature of a science as to require a course of previous habit, or study, in order to the attainment of a knowledge of it”, nor is this evidence of fact given by an expert, the observation, comprehension and description of which require expertise. This is very different from Quick v. Stoland Pty Ltd.[28], where the statement of a qualified accountant and insolvency practitioner on the solvency or otherwise of a company based on the financial accounts and reports he examined was held to be expert opinion evidence.

42.  As for the contention that Ng III and Ng IV should be ruled inadmissible because they contravened the elementary principle that the facts upon which expert opinion evidence is based must be proved by admissible evidence or the underlying assumptions verified, this has no application in the present situation as we are not here concerned with opinion evidence. 

43.  Mr Barlow also contended that the Judge has erred in that he “conflated” Ms Wong’s application for a ruling on the admissibility of Ng III and Ng IV with her application for leave to adduce expert accounting evidence of her own. It is plain from the wording of the Expert Evidence Summons[29] and the submissions made to the Judge on her behalf [30]that her application to adduce expert evidence was contingent on her argument that these affirmations constituted expert evidence.

44.  In any event, the Judge has dealt with her application to adduce expert evidence separately and rejected it[31]. Having gone through a considerable number of accounting documents, the Judge took the view that this is not the kind of case requiring expert evidence of the kind proposed by Ms Wong’s legal advisers, as most of the documents speak for themselves and he would expect the edited versions of Ng III and Ng IV would provide a useful guide.

45.  I see no basis to interfere with this exercise of discretion of the Judge. The fact that the Judge did not read the draft report of Mr John Lees[32] before delivering his ruling is immaterial.

46.  The threshold test for leave to appeal this interlocutory order is not satisfied. There is no reasonable prospect of success in appealing the dismissal of the Expert Evidence Summons, nor is there is some other reason in the interests of justice why the intended appeal should be heard.

The Disclosure Summons

47.  As noted by Mr Bleach, the Disclosure Summons does not merely seek those accounting documents referred to in Ng III and Ng IV. On the wording of the summons, Ms Wong was seeking all the accounting records of all ADHL group companies whose accounts are addressed in those affirmations. The onus is on her to show that such extensive discovery is necessary for disposing fairly of the cause or saving costs[33].

48.  Mr Barlow repeated his earlier submission that without ordering full disclosure of all such accounting records and the removal of all redactions in the documents disclosed, the process of inference that led to the conclusions in the expert opinion evidence in Ng III and Ng IV could not be tested and a judgment made about their reliability. The legal principle he invoked is not applicable as we are not here concerned with expert opinion evidence in Ng III and Ng IV, nor is the case of Quick v. Stoland Pty Ltd of relevance, as the statement in issue in that case was held to constitute expert opinion evidence.

49.  The Judge, who was seized with the matter from the outset, had concentrated on the real issues in dispute and was satisfied that the already substantial level of disclosure is more than sufficient to ensure a fair trial of the issues. He declined to permit the further disclosure sought, as this would amount to permission for a wholesale investigation of ADHL’s affairs in case something turns up, leading to further demands for yet more disclosure, and hopefully to embarrass Raymond Hung and the ADHL group[34]. This exercise of discretion by the trial judge in his case management powers to refuse a further and better list of documents cannot be faulted.

50.  As for the redaction of documents, Mr Barlow acknowledged that whilst a party is entitled to cover up parts of a disclosed document on the ground of irrelevance, it is impermissible to cover up where in doing so would destroy the sense of the document or make it misleading[35] and he contended that is the position here. He submitted that any redaction would destroy the sense of the accounting records and documents or would render the non-redacted figures unverifiable and prayed in aid the advice of Mr John Lees that Ng IV cannot be verified unless the relevant accounting records are provided in unredacted form.

51.  Tess Ng has gone on oath to confirm that the redacted parts are irrelevant to the issues to be tried. The oath of the party giving discovery is conclusive, “unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from anything in the affidavit made by [that party], or by any admission by him in the pleadings, or necessarily from the circumstances of the case – that the affidavit does not truly state that which it ought to state”[36]. The test is not whether the redacted parts are potentially relevant, and it is not enough that they might provide material for cross-examination as to credit. The test is whether it is not unreasonable to suppose that the parts redacted do contain information which may, either directly or indirectly, enable Ms Wong to advance her own case or to damage the defendants’ case[37]. A heavy burden lies on a party who seeks to challenge the veracity of the other party’s oath regarding redaction[38].

52.  This heavy burden has not been discharged here. The generalised complaint that any redaction would destroy the sense of the accounting records and documents or would render the non-redacted figures unverifiable is not substantiated with particulars or demonstrated with any example why that is so. A bare statement of advice from Mr John Lees would not suffice. As submitted by Mr Bleach, the accounting documents are relevant only to specific issues: how the Santa Monica Property was funded, whether the Santa Monica loans existed, and how the Severn Road Property was funded. It is not the court’s role in the consolidated proceedings to perform a roving evaluation of ADHL’s affairs and accounts. There is no justification for the wholesale removal of redactions sought by Ms Wong.

53.  I agree also with Mr Bleach that Mr Barlow’s reliance on the judgment of Harris J in HCMP 1602/2010[39] is misconceived. In that case, Ms Wong had pointed to various entries in the accounting records which, according to her, were consistent with Raymond Hung having misapplied company funds. The transactions sought to be investigated by her in that case in the exercise of her right as a shareholder have nothing to do with the specific issues in the consolidated proceedings.

54.  It has not been shown that in exercising his discretion to reject the request to remove redactions, the Judge had taken into account irrelevant matters or that his decision was plainly wrong. Nor has it been demonstrated that it is not unreasonable to suppose that the parts redacted do contain information which may, directly or indirectly, enable Ms Wong to advance her own case or to damage the defendants’ case.

55.  The intended appeal against dismissing the Disclosure Summons has no reasonable prospect of succeeding. It does not raise any important issues of general application. I find no support for the contention that there is some other reason in the interests of justice why the intended appeal should be heard.

Conclusion and orders

56.  For the above reasons, I would dismiss the application for leave to appeal to the Court of Appeal. As the application is entirely without merit, I would make a further order pursuant to Order 59 rule 2A(8) that no party may under rule 2A(7) request the determination to be reconsidered at an oral hearing inter partes.

57.  I would make an order nisi that the plaintiff is to pay the 1^st and 2^nd defendants’ costs of this application forthwith, to be assessed on a gross sum basis. For the purpose of a gross sum assessment, I would direct the 1^st and 2^nd defendants to submit a skeleton bill within 14 days hereof and the plaintiff do have leave to respond within 7 days thereafter.

Hon Fok JA:

58.  I agree.

[1] Ruling on 31 October 2011, para. 14

[2] Ruling on 24 October 2011, para. 65

[3] Ruling on 24 October 2011, para. 9

[4] Ruling on 24 October 2011, paras. 11 to 15

[5] Ms Wong sought leave to appeal this decision to the Court of Appeal by summons dated 13 October, which was refused by the Judge on 24 October 2011, paras. 49 and 60. This was not further pursued as it was subsumed by the summons issued by her on 19 October seeking substantially more extensive discovery.

[6] The Judge observed that in fairness to the parties, this is a substantial case which only started in early 2011, the originating summonses had been given a very early listing for trial with his assistance, so that the parties have had less time to get up their cases in readiness for trial. See Ruling on 24 October, para. 50, and Ruling on 31 October 2011, para. 14.

[7] Ruling on 24 October 2011, para. 18

[8] Ruling on 24 October 2011, para. 20

[9] She has retained Mr John Lees for this purpose.

[10] Due to the retirement of Deputy Judge Carlson in late January 2012

[11] Ruling on 31 October 2011, paras. 17 to 19

[12] Section 14AA(4) of the High Court Ordinance, Cap. 4

[13] SMSE v. KL [2009] 4 HKLRD 125 at 129, para. 17

[14] Ho Yuen Ki Winnie & Anr. V. Ho Hung Sun Stanley & Anr., HCMP 1009/2009, 24 August 2009, para. 16

[15] Ho Yuen Ki Winnie & Anr. V. Ho Hung Sun Stanley & Anr., HCA 391/2006, 25 May 2009, para. 3

[16] Ho Yuen Ki Winnie & Anr. V. Ho Hung Sun Stanley & Anr., HCA 391/2006, 25 May 2009, para. 8 (concerning leave to appeal an order on specific discovery); and on renewed application to the Court of Appeal, Ho Yuen Ki Winnie & Anr. V. Ho Hung Sun Stanley & Anr., HCMP 1009/2009, 24 August 2009, para. 22

[17] Lee Tak Yee v. Chen Park Kuen & Ors. [2001] 1 HKLRD 401 at 403E to H

[18] Kan Miu Wah Pauline v. Aeroflot Russian International Airlines, CACV 142/2006, 6 September 2006, para. 11; Chan Wing Cheung Allan v. Ho Shu Yee Susana, CACV 393/2004, 10 January 2005, para. 8

[19] Cheung Kam Wah v. Cheung Hon Wah & Ors. [2005] 1 HKC 136 at 142F to G, para. 17; Carlos Manuel Kwong v. Lo Kam Wing & Ors., CACV 128/2005, 3 November 2005, para. 28 (concerning an order on specific discovery)

[20] Summary Arguments of 1^st and 2^nd Defendants on leave to appeal dated 25 November 2011, Appendix 1. A shorter summary sof Ng IV appeared in the 1^st and 2^nd Defendants’ Skeleton Submission to the Judge dated 17 October 2011, para. 35.

[21] Set out in Schedule B to the summons for leave to appeal filed on 2 November 2011.

[22] Ruling on 24 October 2011, paras. 43 and 48

[23] Expert Evidence: Law and Practice, by Tristram Hodgkinson and Mark James, 3^rd ed., paras. 1-012, 2-001 to 2-003; Tang Ping Choi & Anr. v. Secretary for Transport [2004] 1 HKLRD 284 at 290H to J

[24] Clark v. Ryan (1960) 103 CLR 486 at 491

[25] R v. Turner [1975] 1 QB 834 at 840B to G; The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at 81; Dasreef Pty. Ltd. v. Hawchar [2011] HCA 21 at paras. 60 to 70 (High Court of Australia); Petracho v. Griffiths, 2007 NSWCA 302 at para.[58] (Supreme Court of New South Wales, Court of Appeal)

[26] The gist of the advice was set out in the Plaintiff’s Reply Points to the Judge dated 20 October 2011, para. 16

[27] Ruling on 24 October 2011, paras. 41 to 45

[28] (1998) 157 ALR 615

[29] In para. (3), leave to adduce expert accounting evidence was sought alternatively.

[30] Plaintiff’s Skeleton Arguments to the Judge dated 14 October 2011, paras. 5.2 and 5.3; transcript of hearing, page 110S to T

[31] Ruling on 24 October 2011, paras. 46 to 48

[32] Referred to in para. 48 of the Ruling on 24 October 2011

[33] Rules of the High Court, Order 24 rule 11

[34] Ruling on 24 October 2011, paras. 56 to 59

[35] G.E. Capital Corporate Finance Group Ltd. v. Bankers Trust Co. & Ors. [1995] 1 WLR 172 at 175H

[36] Jones v. Andrews (1888) 58 LT 601 at 604, quoted in G.E. Capital Corporate Finance Group Ltd. at 174E

[37] G.E. Capital Corporate Finance Group Ltd., supra. at 177B and D, and 178A

[38] Guess?, Inc & Ors. v. Lee Seck-mon & Ors. [1989]1 HKLR 399 at 404H

[39] Wong Kar Gee Mimi v. Hung Kin Sang Raymond & Anr. [2011] 5 HKLRD 241