Civil Action1998

SHIH MEI CHIN v. YEN HING FACTORY LTD.

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38105-EN-1999-08-26

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HCA020691A/1998

HCA 20691/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 20691 OF 1998

____________

BETWEEN
	SHIH MEI CHIN	Plaintiff

	AND

	YEN HING FACTORY LIMITED	Defendant

____________

Coram: The Hon. Mr. Justice Yeung in Chambers

Date of Hearing: 26 August 1999

Date of Judgment: 26 August 1999

______________

J U D G M E N T

______________

1. This is an appeal by the Plaintiff against the order of the masterdismissing her claim.

2. The Plaintiff claims against the Defendant for just over $2 million as director's fee for the period from July 1996 to November 1998.

3. The Defendant's defence was that the Plaintiff was not entitled to the salary payment because she had voluntarily resigned and ceased to be an employee of the Defendant as of 30th June 1996.

4. It is suggested that as from the 30th June 1996, the Plaintiff has been an non-executive director and therefore not entitled to receive a salary.

5. In support of the aforesaid contention, the Defendant relied on two letters dated 12th June 1996 and 14th June 1996. The relevant extracts from the two letters are set out as follows:-

The letter dated 12th June 1996:
"I should leave... (our) parting is almost pre-arranged... I once thought about staying behind and being a "silent" director, coming into work and leaving work without making too many comments, but I found out that I can't do this. Therefore in the end I chose to leave... I hope that you forgive me if the future of Yen Hing is not as good because of my departure... I should go my own way."
And the letter dated 14th June 1996:
"I hope you will wish me well... I shall rest for a year, and arrange for my works to be published in the papers... Next year will be a year of struggle for you; if you need help, give me a call and I will be more than happy to help out. However in the meantime I have to let myself take a break for a while... Can you treat me as having left office from the month of June? Thank you."

6. It is also the Defendant's contention that the Plaintiff ceased to turn up for work and ceased to carry on any sort of executive role after 30th June 1996.

7. Whilst the Plaintiff might have stopped returning to the office for active management work since 30th June 1996, there is no dispute that she remains a director of the Defendant until now. She also holds 33% of the shares in the Defendant's company.

8. The Plaintiff's claim is for director's fee and not for salary as an employee. There is no dispute that she is still a director, be it an non-executive one.

9. Whether as an non-executive director, she is still entitled to be paid director's fee is of course a matter of evidence and can only be properly determined at the trial.

10. In so far as the Plaintiff's claim was dismissed on the basis that it was a claim for salary and that she had ceased her employment with the Defendant, the decision was reached on a falsed premises. The mistake arose out of the attempt on the part of the Defendant's solicitor to translate into English the Plaintiff's Statement of Claim which was filed in Chinese.

11. "Director's fee" was wrongly translated as "salary" which mistake was followed up on in the Defence.

12. The mistake was further compounded when the Defendant's solicitor included the wrongly translated documents as part of the bundle of documents for the hearing.

13. A monolingual solicitor in Hong Kong may well require the translation of documents to assist him in the conduct of litigation, but such translated documents should never be made part of the Court documents, otherwise a wrongly translated document will mislead not just the solicitor concerned but the Court as it did in the present case.

14. To strike out a claim summarily is a serious step to take and it should only be taken when there is no arguable case against the Defendant.

15. The Plaintiff's claim may not have been too well set out as she is acting in person. The Defendant may well be entitled to further and better particulars.

16. But in so far as the claim is for director's fee and there is no dispute that the Plaintiff is still a director of the Defendant, there is no valid basis to strike out her claim at this stage even though she may have stopped taking an active role in the day to day management of the Defendant's company.

17. In the circumstances, the appeal must be allowed and the order of the master dated 22nd July 1999 is set aside.

	(W. YEUNG)
	Judge of the Court of First Instance High Court

Representation:

Plaintiff: Shih Mei Chin, appearing in person.

Mr. Toby Gibson of Messrs. Slaughter and May for the Defendant.

38147-CH-1999-07-26

施美敬訴源興廠有限公司

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HCA020691/1998

HCMP6699/98

香港特別行政區

高等法院

原訟法庭

高院雜項案件1998年第6699號

--------------

原告人	施美敬

	對

第一被告人	孖士打律師行
第二被告人	邱泰年先生

-----------------------

及HCMP7006/98

高院雜項案件1998年第7006號

--------------

原告人	施美敬

	對

第一被告人	邱泰年先生
第二被告人	邱泰樑先生
第三被告人	石志成會計師行
第四被告人	石志成秘書行

-----------------------

及

高院民事訴訟1998年第20691號

--------------

原告人	施美敬

	對

被告人	源興廠有限公司

--------------

主審法官：高等法院原訟法庭法官張澤祐內庭聆訊

聆訊日期：1999年7月26日

判決日期：1999年7月26日

________________

判決書

________________

三宗訴訟

1. 原告人施美敬女仕分別對不同的被告人提出三宗訴訟。

2. 在HCMP 6699/98案中，她要求孖士打律師行和邱泰年先生呈遞一份鉅明有限公司股份分配及股東協議文件。

3. 在HCMP 7006/98案中，她要求邱泰年、邱泰樑、石志成會計師行及石志成秘書公司，呈遞關於源興廠有限公司("源興廠")和有關公司的核數報告。

4. 在HCA 20691/98案中，她向源興廠追索董事籌金及工資。

5. 這件案的背景是原告人和兩位邱先生是源興廠的股東和董事。原告人是屬於小數股東。雙方對源興廠的運作發生紛爭。

法庭命令

6. 在HCMP 6699/98案中，鍾士聆案官應邱先生的申請取消了原告人的申索，原告人現提出上訴。

7. 在HCMP 7006/98案中，關聆案官取消了原告人對石志成會計師行和秘書公司的申索，原告人亦提出上訴。

8. 原告人對潘聆案官在1999年4月1日的決定及陸聆案官在1999年5月4日的決定亦提出上訴。

取消申索

9. 因為這次主要的上訴是關於取消原告人的申索，本席現先處理這一事項。

10. 在HCMP 6699/98案中，邱先生指在這案件展開之後，他已向原告人提供她所要求的文件。該份是英文文件，由孖士打律師行擬定。但各方均沒有簽署，及沒有執行文件的內容。孖士打律師行亦確認他們曾經擬定過這份文件，及後來的指示是不需要繼續處理這宗事項。

11. 原告人指她要求的文件是中文版本，內容與提供的文件不乎。鍾士聆案官指原告人的訴訟一定會失敗，故把她的申索取消。

12. 在HCMP 7006/98案件中，石志成會計師行和秘書公司指出他們的責任只是向源興廠提供文件，而對源興廠的股東卻沒有這些責任。原告人並要求他們解釋這些文件。石指出他們根本不可能履行這項要求。

呈遞文件訴訟

13. 本席對這些陳詞，不需要作出任何判決，因為這兩宗案件涉及一個更基本的課題。在這兩案中，原告人只是要求對方呈遞文件。一般而言，原告人是不可以只為要求對方披露或呈遞文件，而展開訴訟。每一件訴訟都需要有一個訴訟因由，例如違反合約、疏忽等等。除非有特別的法律准許，否則是不可以只為要求對方提供文件而展開訴訟。在一般案件之中，正式展開訴訟之後，雙方都需要交換文件。雙方亦可要求法庭命令第三者在審訊期間，向法庭提交與案件有關的文件，或出庭作證。

14. 例外的情形則如下：

1）在傷亡案件之中，原告人可在訴訟前要求對該案件可能有關連的人仕披露文件。原告人亦可在傷亡案件展開之後，要求非涉案人仕提供文件。
2）原告人可以要求非涉案人仕，提供某些對原告人作出錯誤行為的人仕的真正身分。
3）為了協助執行判決，原告人可以要求對方披露他的資產，又在特殊情形之下，要求法庭發出命令，保存某些文件。這種命令稱為Anton Piller Order。

上述情形可以參閱Paragraphs 24/0/4 to 24/0/11, Supreme Court Practice 1999。

15. 但這些例外的情形並不適用在這兩宗案件上。這兩宗訴訟的唯一目的，是要求對方提供文件，除此之外，這兩宗案件根本沒有一個基本的訴訟因由，故此訴訟最終只會失敗。所以，這兩宗案件被聆案官取消是正確的決定。

逾期上訴

16. 至於對潘聆案官及陸聆案官的上訴，原告人已經過了法定的５天上訴期，因此原告人所提出的實質申請是准許她逾期上訴。

17. 在HCMP 6699/98及HCMP 7006/98案件之中，何聆案官在1999年2月5日就有關雙方交換誓章的時間表頒發了命令。原告人履行了這個命令。她指出石敬成會計師行沒有履行命令，因此她在這兩宗案件中都發出了傳票，要求潘聆案官處理。潘聆案官把她的傳票取消。原告人繼而再發出另外一張傳票，要求陸聆案官處理這事件，陸聆案官亦把傳票取消。

18. 在HCA 20691/98案中，被告人申請簡易程序去處理某個課題。原告人在一次聆訊之中缺席。她接着發出傳票，要求陸聆案官處理這個問題，而陸聆案官則把這張傳票取消。

19. 原告人沒有在傳票內清楚列出要求，可能由於原告人是一名普通巿民，不了解法庭程序。她發出這些傳票是認為它們會處理她本身案件。但當時因為刪除她的訴訟及簡易程序的兩個申請都被押後，所以在聆案官面前根本沒有一個實質的申請。因此這兩位聆案官取消原告人的傳票是適當的做法。

20. 在此情形之下，本席不應再批准原告人提出逾期上訴。

原告人應該尋求法律意見

21. 如果原告人和其他股東對這間公司確實是有紛爭，她應該採取一些針對該公司的訴訟，例如申請公司清盤等。這些事項她應尋求法律意見來解決問題。

原告申請駁回

22. 在這三件案件中，本席認為聆案官的命令絕對正確，因此駁回原告人在HCMP 6699/98及HCMP 7006/98的上訴，並拒絕她對三宗案件申請准許逾期上訴。

[聆訊訟費]

23. 原告人應付各被告人在這次聆訊的對訟當事人基準的訟費。

	(張澤祐)
	高等法院原訟法庭法官

原告人：	無律師代表，親身出席

被告人：	HCMP6699/98
	第一被告人由林亦淙先生代表
	第二被告人由司力達律師樓Toby Gibson先生代表

	HCMP7006/98
	第一及第二被告由司力達律師樓Toby Gibson先生代表
	第三及第四被告由韓潤燊律師樓轉聘王鳴峰先生代表

	HCA20691
	被告人由司力達律師樓Toby Gibson先生代表

38094-EN-1999-07-26

SHIH MEI CHIN v. YEN HING FACTORY LTD.

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HCA020691/1998

HCMP6699/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.6699 OF 1998

---------------

BETWEEN
	SHIH MEI CHIN	Plaintiff

	AND

	JOHNSON STOKES & MASTER	1st Defendant
	MR YAU TAI NIN	2nd Defendant

--------------

AND HCMP7006/98

MISCELLANEOUS PROCEEDINGS NO.7006 OF 1998

---------------

BETWEEN
	SHIH MEI CHIN	Plaintiff

	AND

	MR YAU TAI NIN	1st Defendant
	MR YAU TAI LEUNG	2nd Defendant
	ROCKY SHEK & CO. A FIRM	3rd Defendant
	ROCKY SHEK SECRETARIAL LIMITED	4th Defendant

------------------

AND HCA20691/98

ACTION NO.20691 OF 1998

-----------------

BETWEEN
	SHIH MEI CHIN	Plaintiff

	AND

	YEN HING FACTORY LIMITED	Defendant

------------------

Coram : Hon Mr Justice Cheung in Chambers

Date of hearing : 26 July 1999

Date of delivery of judgment : 26 July 1999

-------------------------

J U D G M E N T

-------------------------

The three proceedings

1. The Plaintiff, Miss Shih Mei Chin, commenced three separate proceedings against different parties.

2. In HCMP 6699/98, she sued Johnson Stokes & Master, solicitors and Mr Yau Tai Nin seeking the production of an agreement relating to allotment of shares and shareholders agreement of a company called "Great Light Ltd.".

3. In HCMP 7006/98, she sued Mr Yau Tai Nin, Mr Yau Tai Leung, Rocky Shek & Co. Accountant and Rocky Shek Secretarial Limited seeking the production of auditors' reports of a company called "Yen Hing Factory Ltd." ("Yen Hing") and its related companies.

4. In HCA 20691/98, she is seeking remuneration as a director and employee from Yen Hing.

5. Very briefly, the Plaintiff and the two Mr Yau are the shareholders and directors of Yen Hing, the Plaintiff being a minority shareholder. There are disputes in relation to the operation of Yen Hing.

The Orders

6. In HCMP 6699/98, Mr Yau Tai Nin succeeded before Master Jones in striking out the Plaintiff's claim against him. The Plaintiff now appeals against that order.

7. In HCMP 7006/98, Rocky Shek & Co. and Rocky Shek Secretarial Limited succeeded before Master Kwan in striking out the Plaintiff's claim against them. The Plaintiff also appeals.

8. The Plaintiff also appeals against interlocutory orders made by Master Poon on 1st April 1999 and Master Lok on 4th May 1999 respectively.

Striking out

9. As the substance of the appeals is on the orders for striking out, I will deal with them first.

10. In HCMP 6699/98, Mr Yau Tai Nin said that the document that the Plaintiff asked for had already been provided to her after the commencement of the case. It was an agreement in English, drafted by Johnson Stokes & Master, but it was not signed by the parties to the agreement and was not acted upon.

11. A senior partner of Johnson Stokes & Master also confirmed the drafting of the agreement and his instruction that the matter was not to be proceeded further. The Plaintiff, however, said that the document she asked for was in Chinese and the content was different. The Master found that the Plaintiff was bound to fail in her claim and the claim was struck out.

12. In HCMP 7006/98, the accountant and the secretarial company argued that the duty to disclose company documents was owed to Yen Hing and not to its shareholders. Besides, the Plaintiff is also asking them to give an explanation on these accounts, a task that is impossible for them to perform.

Action for discovery

13. It is not necessary for me to express a view on these arguments because there is a fundamental issue regarding these two proceedings. These are proceedings for discovery of documents only. As a general rule, a plaintiff cannot have an action solely for discovery. A cause of action, for example, breach of contract, negligence etc., is required.

14. Subject to specific provisions, the Plaintiff cannot commence an action solely for the purpose of discovery. Discovery of documents is a procedural step that the parties to the proceedings have to perform after the commencement of the action. As against non-parties, subpoena may be issued requiring them to produce documents at the trial and to testify in the trial.

15. However, there are exceptions to the general rule :

(1) In personal injury cases, even before commencement of proceedings, a litigant can ask for discovery against a likely party to the proceedings. Also in personal injury cases, after the action had commenced, an order for discovery can be made against a non-party.

(2) There are situations when a plaintiff can require a party to disclose the true identity of a wrongdoer.

(3) Further exceptions are discovery of assets in aid of execution of judgment and the exceptional circumstances of discovery of documents by way of Anton Piller order.

See paragraphs 24/0/4 - 24/0/11 of the Supreme Court Practice 1999.

16. In these two cases, the proceedings clearly do not come within the exceptions. The only purpose is to seek production of documents when there is no other underlying cause of action against the Defendants. In the circumstances, the two proceedings are bound to fail because they have no cause of action. The two proceedings are properly struck out by the Masters.

Leave to appeal out of time

17. As to the appeal against the orders of Master Poon and Master Lok, they are out of time. They were not appealed within the five days of the order. This is in essence an application for leave to appeal out of time.

18. The position relating to these orders are as follows. In HCMP 6699/98 and HCMP 7006/98, Master Ho on 5th February 1999, gave directions for filing of affidavit evidence. The Plaintiff complied with the order but she said that Rocky Shek did not. She issued a summons in each of these two proceedings before Master Poon who, however, dismissed the summons. She then issued another summons before Master Lok who likewise dismissed it.

19. In HCA 20691/98, the Plaintiff had been absent in the hearing of an O.14A summons issued by the Defendant. The Master adjourned the summons. She then issued a summons before Master Lok which was dismissed by the Master.

20. It is not too clear what the Plaintiff was seeking in these summonses. It is more likely that the Plaintiff, as a lay person, had misunderstood the procedure and issued the summonses thinking that they were for the determination of her own claim. However, at that stage as the hearing for the striking out application and the O.14A application were adjourned for argument, there was no substantial applications before Master Poon and Master Lok, hence the various summonses were properly dismissed . This being the case, I would not grant leave to appeal against those decisions out of time.

Plaintiff to seek legal advice

21. If there is a dispute between the shareholders and directors of the company, then the Plaintiff may wish to commence proceedings relating to the company itself, for example, winding-up of the company. This is a matter that the Plaintiff has to seek independent legal advice.

Applications dismissed

22. As the matter now stands before me, the two appeals are dismissed and the application for leave to appeal out of time is also dismissed.

[Submissions on costs]

23. The Plaintiff is to pay the Defendants the costs of the application before me on a party and party basis.

	(P. Cheung)
	Judge of the Court of First Instance, High Court

Representation:

Plaintiff, Shih Mei Chin, appearing in person

Mr Toby Gibson of M/s Slaughter & May, for the Defendant in HCA 20691/98, the 2nd Defendant in HCMP6699/98 and the 1st and 2nd Defendants in HCMP 7006/98

The 1st Defendant in HCMP 6699/98, appearing in person, represented by Mr Billy Y.C. Lam

Mr William Wong, inst'd by M/s Hon & Co., for the 3rd and 4th Defendants in HCMP 7006/98