ANG JIMMY TJUN MIN v. KHOO CHUN KIM AND OTHERS

HCA 16/2021 &
HCA 17/2021 &
HCA 1449/2023
HCA 863/2023
(Heard Together)

[2025] HKCFI 2106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 16 OF 2021

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BETWEEN

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AND

HCA 17/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17 OF 2021

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BETWEEN

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AND

HCA 1449/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1449 OF 2023

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BETWEEN

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AND

HCA 863/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 863 OF 2023

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BETWEEN

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D E C I S I O N

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A. INTRODUCTION

1.  This is the global case management (“CMC”) of 4 cases – HCA 16/2021 (“HCA 16”), HCA 17/2021 (“HCA 17”), HCA 1449/2023 (“HCA 1449”) and HCA 863/2023 (“HCA 863”). The subject matters surround the estate (“Estate”) of Mr Ang Tiong Loi, deceased, (“Father”) and companies set up by him before his death in 2008.

2.  The parties before the Court are:

(1) “Jimmy” – the son of the Father and the Plaintiff in HCA 16 and HCA 17;

(2) “Jeffrey” (D1), “Eileen” (D2) and “Mother” (D4) in HCA 16 and HCA 17 (collectively, “Mother’s Camp”); they are also defendants in HCA 1449; Eileen is the wife of Jeffrey, sister of Jimmy, and daughter of Mother;

(3) “Administrator” of the Estate, ie Mr Cheng Tsz Ying, solicitor, appointed by the Court after removal of the executors; the Estate is the plaintiff in HCA 1449 and HCA 863;

(4) “Banner” (ie Banner (China) Investment Company Limited), a nominal defendant in HCA 16 but a substantive defendant in HCA 1449 and HCA 863;

(5) “Leebury” (ie Leebury Investments Limited), a nominal defendant in HCA 17 but a substantive defendant in HCA 1449.

3.  By a letter dated 14 March 2025, this Court invited the parties to address various issues (“the Court’s Letter”). The parties have summarized the following matters for this Court’s disposal at this hearing:

(1) The Administrator should decide whether and how he should participate in the taking of Mother’s deposition (“Administrator’s Participation Issue”);

(2) The taking of Mother’s deposition in HCA 16 and HCA 17 on dates in November and December 2025, which the Court has pencil-marked. This hearing will determine the scope, dates and logistics of the taking of deposition (“Deposition Issue”);

(3) Summonses taken out by Jimmy in HCA 16, HCA 17 and HCA 1449 to have these actions tried at the same time or one after another. These summonses have been stayed by consent of Jimmy and Mother’s Camp pending the appointment of the Administrator. Jimmy seeks to restore these Summonses for determination. (“Try Together Issue”)

(4) Whether HCA 1449 and HCA 863 should be stayed (“Stay Issue”).

B. BACKGROUND

4.  The background has been aptly summarized by Mr CY Li, SC (leading Mr Ken To and Mr Chester Kwan) and I adopt the same.

B1. HCA 16

5.  HCA 16 is a derivative action commenced in 2021 by Jimmy as a minority shareholder on behalf of Banner.

6.  There is no dispute that:

(1) Father and Mother held the shares of Fentham Corporation (“Fenthan”), a BVI company, as joint tenants.

(2) Fentham wholly owned Dynasty Plaza Inc (“DPI”), which in turn wholly owned Gaumnitz Inc (“Gaumnitz”), a Delaware company.

(3) In 1997, Gaumnitz transferred 96,498 shares in MetroCorp Bancshares Inc (“MetroCorp Shares”) to Leslie Looi Meng (“Leslie”) at nil consideration.

7.  The major disputes between Jimmy and Mother’s Camp are:

(1) Whether, despite the joint tenancy at law, the beneficial interest in Fentham was held solely by Father (Jimmy’s case);

(2) Who the beneficiary to the MetroCorp Shares is. On Jimmy’s case, it was Father and now the Estate because Father had provided consideration for the transfer of the MetroCorp Shares to Leslie by way of a deduction to Father’s shareholder account with Gaumnitz. However, according to Mother’s Camp, the transfer of the MetroCorp Shares to Leslie was gratuitous. Gaumnitz remains the beneficiary; alternatively, Father and Mother are joint beneficiaries.

7.  Meanwhile, after Leslie came to hold the MetroCorp Shares, those Shares went through share-splits and the dividends from the Shares were reinvested.

8.  In 2013, Leslie transferred the MetroCorp Shares to Banner, which became the trustee holding the Shares.

9.  In 2014, the MetroCorp Shares were exchanged for shares of East West Bankcorp as a result of a merger.

10.  The subject matters of HCA 16 are (a) 63,000 EWB shares held by Banner; and (ii) funds in the total amount of US$4,125,125.30 (“Banner’s Misappropriated Funds”). It is Jimmy’s case that both of these assets were misappropriated from Banner by Mother's Camp. On his own case, Banner holds the 63,000 EWB shares on trust for the Estate. Jimmy relies on breaches of fiduciary duties, knowing receipt, unjust enrichment and unlawful conspiracy to injure against Mother's Camp.

11.  The key issues are thus:

(1) Whether the Estate or Mother has the sole beneficial ownership of the EWB shares or MetroCorp Shares;

(2) Whether the beneficial ownership of Fentham lies with Mother by reason of survivorship, or with the Estate; and

(3) Even if beneficial ownership of the EWB shares lies with Mother, whether Banner’s Misappropriated Funds can be traced to the EWB shares.

12.  The Mother's Camp raises further defences as to:

(1) Whether there was assent, acquiescence or estoppel which would defeat Jimmy’s claims; and

(2) Whether specific transfers are time-barred.

B2. HCA 1449

13.  HCA 1449 was issued by Jimmy on 11 September 2023 in his then capacity as executor of Father. Jimmy did so despite H Au-Yeung J having observed that it would no doubt be more prudent to wait until the result of the challenge to Jimmy’s executorship was known: Decision in HCMP 598/2021, §§34 and 52. Eventually, Jimmy was removed on 4 December 2023, after a contested hearing. Because of his removal, the writ has not been served as of this hearing[1].

14.  The claim involves Fentham, EWB shares and 2 sums. According to Jimmy, 100% or 50% of the beneficial ownership of Fentham rested with Father. If Fentham is found not to be beneficially owned by the Estate, the Estate claims damages against Mother and Jeffrey for misrepresenting to Jimmy as to the true ownership of Fentham.

15.  Based on the same background matters summarized in HCA 16, the Estate claims ownership of 192,456.45 EWB shares, including the 63,000 EWB shares that form the subject matter of HCA 16 held by Banner.

16.  The Estate also claims 2 sums, (a) US$315,449.81, being dividends from the EWB shares and (b) US$3,106,146.18, being cash payment from the merger. Mother's Camp claims that Banner’s Misappropriated Funds is part of these 2 sums.

B3. HCA 17

17.  This is a derivative action commenced by Jimmy as minority shareholder on behalf of Leebury. Jimmy claims that there had been a number of misappropriations of Leebury’s assets by Mother's Camp:

(1) Funds amounting to US$5,860,134.84, SGD 6,303,783.74, GBP 1,801.67 and AUD 675,534.21 (“Leebury’s Misappropriated Funds”);

(2) 260,000 shares of Overseas-Chinese Banking Corporation Ltd (“OCBC Shares”); and

(3) Loans drawndown, totalling SGD 1,653,847.67, which were not used for the benefit of Leebury but were disposed of to third parties (“Leebury’s Misappropriated Loans”).

18.  The causes of action are breach of fiduciary duties, dishonest assistance, knowing receipt, unjust enrichment and unlawful conspiracy to injure on the part of the Mother's Camp. The Estate seeks damages representing the misappropriated assets.

19.  Mother’s case is that she has had control over Leebury after Father’s death. She was thus at liberty to use the assets (including the alleged Leebury’s Misappropriated Funds and OCBC Shares) as she deemed fit. Leebury’s Misappropriated Loans were repaid by her funds. Eileen was not in active management of Leebury. Mother's Camp further raises defences of (a) assent, acquiescence and estoppel, which would defeat Jimmy’s claims; and (b) time-bar regarding specific transfers.

B4. Claims in HCA 863

20.  This action was commenced by Jimmy in his then capacity as executor of the Estate. The claim is by the Estate over the ownership of Shanhai Jinshun Real Estate (上海金順房地產), a company incorporated in Mainland China and is currently held by Banner.

B5. Summary of the various actions

21.  From the analysis in Section B, it can be seen that HCA 17 is a standalone action despite a prior order to have it tried together with HCA 16. None of the parties request that HCA 863 be consolidated or tried together with the other 3 Actions. There is substantial duplication of factual disputes and reliefs sought in HCA 16 and HCA 1449.

C. ADMINISTRATOR’S PARTICIPATION ISSUE

C1. Administrator’s position

22.  By 4 letters dated 11, 15, 16 and 22 April 2025 from the Administrator to solicitors of Jimmy and Mother's Camp, the Administrator set out his stance on Q1-4 in the Court’s Letter:

(1) The Administrator will not oppose or participate in the taking of Mother’s deposition in HCA 16 and HCA 17.

(2) He intends to stay neutral, leaving the beneficiaries of the Estate to litigate among themselves in HCA 16 and HCA 17.

(3) He will take up HCA 1449 and HCA 863. He intends to seek counsel’s advice before taking further steps in HCA 863.

(4) He asks for a stay of HCA 1449 pending the determination of HCA 16 and HCA 17.

(5) He will not take out any Beddoe applications in relation to HCA 1449 and HCA 863 for the time being. He will seek counsel’s advice or wait until determination of HCA 16 and HCA 17 before taking out any Beddoe application. However, he will do so if he is required by any party to (a) participate in HCA 16; (b) to proceed with HCA 1449 and HCA 863 without waiting for the determination of HCA 16 and HCA 17 and/or (c) lend his name to Jimmy to conduct HCA 1449 and/or HCA 863.

(6) He asked for the consent of the beneficiaries of the Estate to lift the cap of 2.5% of the unadministered assets of the Estate on the costs of the Administrator (“the Cap”) as ordered by Recorder Eugene Fung SC on 26 November 2024 in HCMP 94 and 322 of 2022. The Administrator indicates that he will seek the Court’s directions on the matter if the beneficiaries do not consent, including whether the Cap applies to (a) counsel’s fees and other out of pocket expenses; and (b) the costs of the Administrator incurred up to this CMC.

C2. Legal principles on administrator’s duties

23.  The legal principles on a personal representative’s duty to get in the assets of the estate are not in dispute. Once again, I adopt the summary of Mr CY Li, SC.

24.  The trustee owes a primary duty to get in the trust property, place it under his own control and administer it according to law: Lewin onTrusts (20^th ed) at §§34-001, 34-015; Williams, Mortimer & Sunnucks (22^nd ed) at §38-20.

25.  It is the duty of the administrator, not that of the beneficiaries, (be they “majority” or “minority”) to get in the assets of the estate: Chui Pak Ming Norman v Leung Sai Lun Robert (unrep., HCMP 7845/1999, 5 October 2000), Yuen J (as she then was) at §§41-42; upheld by the Court of Appeal in [2001] 2 HKC 286 at 294H. There, the Court of Appeal stated:

“It is the duty of administrators to get in the assets of the estate, not the duty of beneficiaries, be they “majority” or “minority” beneficiaries.

In my view, it would be a wrongful exercise of this Court’s discretion if it were to release the Administrators from that duty in the light of the case that has been made against the 5^th and 8^th Defendants, and to leave it to the other beneficiaries to assume 100% of the incidence of costs in an action which will no doubt be expensive. An administrator’s duty to each beneficiary is the same. “Minority” beneficiaries have as much right of the proper exercise of administrators’ duties as do “majority” beneficiaries.”

26.  In a case where the trustees are not bare trustees, the position is more complicated. If the trustees fail to pursue a claim which is vested in them in their capacity as such, then a beneficiary may commence an administration action against the trustees to compel them to take proceedings to enforce the claim. If a serious question arises as to whether or not the trustees ought to sue, then the court will determine the question in accordance with the principles applicable to Beddoe proceedings. If the court in the administration action is satisfied that the claim ought to be brought, then it may direct the trustees to sue or give liberty to the beneficiary to use the trustee’s name, or appoint a receiver who will use the trustee’s name. See Lewin on Trusts, 20^th ed, at §47-005.

C3. Administrator’s participation in HCA 16

27.  The Administrator acknowledges the need to take up HCA 1449 but not HCA 16. Jimmy does not agree. He thinks that the Administrator should take part in HCA 16 as the Estate has interests in the subject matter and there are common issues in both cases. If the Administrator does not do so, Jimmy will take out an application under Order 85, rule 2 to ask for an order that the Administrator be directed to take part in HCA 16, including the taking of Mother’s Deposition, as well as in HCA 1449. Alternatively, Jimmy asks that the Administrator lends his name to Jimmy to conduct HCA 1449.

28.  As stated above, there is substantial overlap of factual disputes and reliefs sought in HCA 16 and HCA 1449. The issues of tracing of the interest in the EWB Shares and its dividends, Fentham’s beneficial ownership and answering Mother Camp’s defences on assent, acquiescence and estoppel, may not be appropriately dealt with by Jimmy in his personal capacity or that of a minority shareholder of Banner.

29.  Footnote 1 in §4 of the statement of claim in HCA 16 already foreshadowed a claim to be made by the Estate that the EWB shares belong to the Estate. What Jimmy purported to do then, as an executor, was to seek to recover assets for the Estate from third party “wrongdoers” (in this case, Mother's Camp) who also happen to be beneficiaries of the Estate. A “third party” dispute is one with persons, otherwise than in the capacity of beneficiaries, in respect of rights and liabilities assumed by the trustees as such in the course of administration of the trust: Alsop Wilkinson v Neary [1996] 1 WLR 1220, 1224C-D.

30.  Accordingly, HCA 16 is not just a battle between beneficiaries of the Estate or shareholders of Banner in which the Administrator can stay neutral. It is incumbent on the Administrator to consider whether HCA 16 is worth pursuing. If there is, it is the duty of the Administrator:

(1) To take it up as well to seek recovery of assets belonging to the Estate from Banner or the Mother’s Camp; and

(2) To consider whether to have HCA 16 and HCA 1449 consolidated into one action.

The recovery, if successful, will augment the Estate and benefit all the beneficiaries: Chiu Pak Ming Norman (CA), at p295H.

31.  It would be against the principles in Chui Pak Ming Norman to release the Administrator from that duty and leave it to Jimmy to assume 100% of the incidence of costs in a claim which he (as opposed to the Administrator) has no personal capacity to make. A minority beneficiary like Jimmy has as much right to the proper exercise of the Administrator’s duties as the majority.

32.  Accordingly, I agree with Jimmy that the Administrator do participate in HCA 16. The caveat, of course, is that it is subject to funding, indemnity as to costs for the Administrator and any guidance from a Beddoe judge.

33.  Having regard to the fact that Jimmy was removed as executor, asking the Administrator to lend his name to Jimmy to carry on the battle is totally out of the question. The reasons behind the removal speak for themselves: Judgment in HCMP 94/2022 and HCMP 322/2022 [2023] HKCFI 3120, §§30-35, DHCJ Phoebe Man.

C4. Administrator’s participation in HCA 1449

34.  The Administrator seeks a stay of HCA 1449 until after determination of HCA 16 and 17. I agree with Jimmy that there should be no stay, due to the apparent common issues between HCA 16 and HCA 1449. HCA 16 only deals with part of all issues relevant to the full resolution of the Estate’s claims over the EWB Shares and Fentham. The mere fact that HCA 16 is in a more advanced state is not a reason not to have the 2 actions dealt with together.

35.  Mr CY Li SC suggests that the Court can order consolidation now because a cause or matter becomes “pending” as soon as the writ was issued. The Court can exercise its discretion even though one or more of the writs have not been served and even if one action is more advanced in progress whilst the other writ is not even served: Patel v Au, HCA 183/2014 and HCA 2063/2015, §§18, 48 and 65, Zervos J (as he then was).

36.  I have threshed out the idea of having the pleadings of HCA 1449 (or consolidated pleadings of HCA 1449 and HCA16) ready before proceeding with the taking of Mother’s Deposition (“the Deposition Hearing”). Mr CY Li SC even goes further to suggest expediting the process until and including exchange of witness statements. Having heard the submissions, I do not consider these to be desirable or practicable.

(1) The Administrator has only come on board for about 3 months after the letters of administration were granted to him. He is a stranger to the Ang family. He, very fairly, requires investigation and counsel’s advice in charting the course for all 4 cases.

(2) The Administrator is not bound by all that Jimmy has pleaded but should do his own investigation and assess the merits of HCA 16 and HCA 1449. This is especially so when it is necessary to consider consolidation and there are potentially 2 firms of solicitors representing the Estate and Jimmy as plaintiffs.

(3) The writ in HCA 1449 has not yet been served and there is no summons for consolidation. It is pre-mature for the Court to make an order for consolidation without even seeing the Administrator’s statement of claim for HCA 1449.

(4) At this hearing, I have tried to assess the time frame needed for filing of consolidated pleadings before the Deposition Hearing at the end of 2025. Having regard to the various factors in this paragraph, I believe it is unrealistic to expect HCA 1449 (with HCA 16 consolidated) to be prepared up to the exchange of witness statements, before the Deposition Hearing. The fact that Mother's Camp would cooperate over the issue of service of the writ in HCA 1449 does not change my view.

(5) The claims are sizeable. According to Jimmy, the estimated value of HCA 1449 is about HK$119 million, and HCA 16 is about $65 million. Considering the stake, the Administrator may need to seek Beddoe orders and to uplift the Cap. As rightly pointed out by the Administrator, that does not just involve funding for litigation but also indemnity for costs in case he loses. The Beddoe application will take time.

37.  Accordingly, the Administrator should proceed with HCA 1449 without a stay. He should proceed with any necessary Beddoe applications and file and serve a statement of claim or consolidated statement of claim within 6 months (or 3 months if there is no Beddoe application).

C5. Administrator’s participation in HCA 17

38.  Jimmy does not say that the Estate has an interest in any of the transfers out from Leebury. The issues involving the Estate is only incidentally relevant to the defence of Mother’s Camp of set off relying on “transfers in” from Fentham and Banner to Leebury. I make no direction for the Administrator to participate.

C6. Administrator’s participation in HCA 863

39.  The cause of action belongs to the Estate alone. It does not have to wait for the outcome of any other case. Again, subject to proper funding and indemnity for the Administrator and guidance from a Beddoe judge, I do not see the need to stay this action. Of course, there is also the question of manpower that the Administrator can afford to engage himself in several cases at the same time. This should be left to the overall strategy of the Administrator. I do not see the need for the Court’s intervention now.

C7. Beddoe order(s)

40.  Apparently, the Administrator has concerns as to costs. The unadministered assets are valued at about HK$9m to HK$9.5m. The Administrator’s Cap means that he can only spend about HK$250,000 in administration. Even if the Cap does not apply to the Administrator’s disbursements such as counsel’s fees, the HK$250,000 is wholly inadequate to meet the Administrator’s own costs of even one action.

41.  However, concerns as to costs is not a reason not to proceed with his duties. It is simply a wrongful exercise of discretion to release the Administrator from his duty to get in the assets and leave the beneficiaries to assume all the costs of litigation: Chiu Pak Ming Norman, §42. One can thus anticipate the need for the Administrator to apply for funding from the beneficiaries or seek the guidance of a Beddoe judge.

42.  Jimmy, Mother and Eileen have conceded that the Administrator need not obtain a Beddoe order for attending this CMC and the Deposition Hearing. For other matters and/or cases, Mother and Eileen reserve their positions and may decide on a case by case basis. It is for the Administrator to apply to the Court for lifting the Cap, which Mother and Eileen will agree, taking into account the volume of documents which the Administrator has to review and the work done for the CMC.

43.  However, Jimmy submits that the indemnity from the Estate should be subject to the Cap. This is because the Administrator was aware of limited funds in the Estate and there was pending litigation, and yet the Administrator was still willing to be bound by the Cap. Jimmy suggests that there is insufficient basis to lift the Cap. If the Administrator has made a bad deal in agreeing to the appointment, there is no justification for the remuneration beyond the Cap: Darach E Haughey and Lai Kar Yan (Derek) v Lam Mui[2024] HKCFI 924, at §24.

44.  With respect, without assessment of the merits of the litigation and estimates of the Administrator’s costs and disbursements, it is simply unrealistic to embark on the issue of uplifting the Cap. It may be more appropriate to have it dealt with by a Beddoe application. The issue is raised in the Court’s Letter to enable this Court to consider the overall timetable for managing all 4 cases. Suffice to say that costs of this CMC should be paid out of the Estate.

45.  Accordingly, whilst HCA 1449 should not be stayed and consolidation with HCA16 should be considered, it is not practicable to press the Administrator into a pleaded case in less than 6 months. Any issue as to lifting the Cap, funding, indemnity and guidance should be left to the Beddoe judge.

D. TRY TOGETHER ISSUE

46.  Under Order 4, rule 9(1) of RHC, the Court may order causes or matters to be consolidated or to be tried at the same time, or one immediately after another, or may order any of them to be stayed until after determination of any other of them. This is to be approached from the perspective of case management rather than principles of law: Re The Prudential Enterprises Ltd, HCCW 594/1999, HCA 1240/2001 and HCA 4225/2001, §7, Chu J (as she then was).

47.  The Court has an unfettered discretion, but:

(1) It must nevertheless be satisfied that it would be proper and expedient to make the order having regard, in particular, that:

(a) One primary objective of such an order is to save time and costs;

(b) Where there is substantial overlapping of issues and parties, it is desirable to resolve the disputes in the different actions on one occasion by the same judge.

(c) The Court is seeking the avoidance of unnecessary delay, undue complexity and overloading of issues; and

(d) The Court is seeking the avoidance of creating a risk of irreconcilable decisions which would arise from trying actions separately.

(2) There is no hard and fast rule that, just because the parties are identical and some common question of fact or law is involved in both actions, it would be expedient and proper to order consolidation.

(3) The Court should take a practical and common sense approach to meet the justice of the particular situation, in light of the underlying objectives in Order 1A of RHC.

(4) The emphasis is on ensuring the efficient and just resolution of disputes before the Courts.

See Convoy Collateral Ltd v Cho Kwai Chee[2022] HKCFI 3406, Coleman J.

48.  There is an existing order for HCA 16 and HCA 17 to be tried together, but not HCA 1449. That is for obvious reasons because HCA 1449 has not even been served by the time of this hearing.

49.  Mother, Eileen and Jeffrey take a similar position as the Administrator – that HCA 16 and HCA 17 be heard together and, pending their resolution, HCA 1449 be stayed.

50.  Banner and Leebury are nominal defendants in HCA16 and 17. For HCA 1449, Banner[2] has no objection to the Administrator’s stance that HCA 1449 be stayed pending resolution of HCA 16 and HCA 17.

51.  Jimmy suggest that there be an order for consolidation or trying together in respect of (a) 3 actions, ie HCA 16, HCA 17 and HCA 1449; or (b) 2 actions, ie HCA 16 and HCA 1449.

52.  At this hearing, it becomes quite apparent that HCA 17 can in fact stand on its own, despite a “heard together order”.

53.  As stated above, I take the view that it is for the Administrator, upon taking up HCA 1449, to take out a consolidation summons, if considered appropriate. The fact that HCA 16 is in an advanced stage should not preclude consolidation if it is in the interests of justice to do so. I reserve my comments until I see the consolidation summons. It is best to adjourn the Try Together Summonses sine die with liberty to restore after the filing of the Administrator’s statement of claim and/or consolidation summons (whichever is the earlier) in HCA 1449.

E. DEPOSITION ISSUE

54.  Mother is a material witness on issues relating to the running of Banner, Leebury, her relationship with Father and how they operated the companies, the EWB Shares, Fentham and Gaumnitz. Her evidence will be useful to HCA 16, 17 and 1449. She is aged 86. It is important to have her evidence preserved as soon as possible. Witness statements have been exchanged in HCA 16 and 17. In HCA 16, expert directions on BVI law, Texas law and accounting evidence are sought, but that has no impact on the factual evidence or the appropriateness of taking Mother's Deposition.

55.  The Administrator has an interest in HCA 16. He should attend the Deposition Hearing. He should attend as an “Interested Party” instead of “third party”, until he formally takes up HCA 16. Given the Estate’s interest, at least in the EWB Shares, the Administrator’s failure to attend may cause him to lose a valuable chance of obtaining evidence from Mother to enable him to assess the merits of the claims in HCA 16 and HCA 1449.

56.  Mother, Eileen and Jeffrey propose that 5 days would be a reasonable estimate that will not overstress Mother.

57.  Jimmy suggests that Mother’s Deposition be taken in HCA 17 as a standalone action. It will be more conducive to the proper conduct of the proceedings if Mother’s evidence can be taken for HCA 16 and HCA 1449 together because of the common subject matter. 7 days would be required for HCA 16 and HCA 17, and further reduced to 5 days if it only covers HCA 17.

58.  Whilst Jimmy’s suggestion sounds attractive, one must remember the race with time. HCA 16 is in an advanced stage whereas HCA 1449 is in an embryo stage. HCA 16 is plainly the more important action and the Deposition will benefit HCA 1449 as well. The Deposition Hearing in HCA 16 should not be delayed. For good grounds, the Court may give another opportunity for Mother to supplement her evidence when the pleadings in HCA 1449 are formulated. Banner and Leebury are of course entitled to attend the Deposition Hearing.

59.  Given the participation of the Administrator and that he will not lend his name to Jimmy, I place a marker here that Jimmy has to be prudent in avoiding duplication of costs on issues that belong to the Estate.

60.  I direct that 6 days be reserved for the Deposition Hearing, to be broken up into 2 sessions, each of 3 days.

61.  As the hearing is only for the limited purpose of taking deposition, the opening submission which the parties are to lodge should be limited to no more than 5 pages (with double-sided printing, of font size 14 and 1.5 line spacing) for the Administrator, Jimmy and Mother’s Camp respectively.

62.  There are video/audio recording produced. If a party seeks to rely on any of the video/audio recording to cross-examine Mother (whether on specific issues or for the context of the conversation), such party shall:

(1) Not less than 28 days before the provision of the hearing bundles, produce the transcript of the relevant part of recording/audio record, if such transcript has not already been adduced. Such transcription shall, as far as possible be agreed. Failing agreement, alternative proposed translation shall be annotated to the transcript within 7 days after the production. Any part of the recording for which no transcript is produced shall be excluded from the evidence, unless the trial judge orders otherwise.

(2) Save as aforesaid, no other video or audio recording or transcript thereof are to be included in the trial bundles without leave of the Court.

63.  Jimmy shall arrange for LiveNotes for the Deposition taking, the costs shall be borne by Jimmy, the Administrator and Mother’s Camp in the first instance, but to be in the cause of the relevant trial.

64.  Mother’s deposition be recorded and a written transcript thereof be produced with the assistance of LiveNotes. The reading of the written transcript to Mother and signing of the same by her shall be dispensed with, and the transcript shall be deemed to be her Deposition.

65.  The directions for the Deposition Hearing will be:

(1) The Deposition Hearing shall be held on 25-27 November and 2-4 December before Au-Yeung J.

(2) Normal sitting hours from 10 am to 4:30 pm shall apply.

(3) Evidence of Mother will be taken in punti.

(4) A table of transactions that Mother will be cross-examined on with page references to the pleadings and documents shall be lodged and served by Jimmy and the Administrator, 2 months before the first day of the Deposition Hearing.

(5) Jimmy shall lodge the bundles and e-bundles to be used at the deposition taking, including one set of core bundles, 2 months before the first day of the taking of Mother’s Deposition.

(6) For the avoidance of doubt, the Administrator and the parties shall be bound by Mother’s Deposition.

F. CONCLUSION

66.  In respect of the 4 issues set out above, my directions are as follows:

(1) With regard to the Stay Issue, there shall be no stay of HCA 1449 or HCA 863;

(2) With regard to the Administrator’s Participation Issue, subject to funding and indemnity for the Administrator, and any directions of a Beddoe judge,

(a) the Administrator shall participate as an Interested Party in HCA 16;

(b) within 6 months (or 3 months if no Beddoe application is required) the Administrator shall file and serve a statement of claim to adopt HCA 1449, or propose a consolidated statement of claim if he seeks to have HCA 1449 and HCA 16 consolidated;

(c) the Administrator shall take out a summons, if so advised, for the consolidation of HCA 1449 with HCA 16 within the same time frame in sub-para (b).

(3) With regard to the Deposition Issue,

(a) the Mother’s Deposition shall be taken in 2 sessions on 24-26 November and 2-4 December 2025;

(b) the directions set out in paragraphs 61, 62-65 above [to be set out in the draft order] shall apply.

(4) The Try Together Summonses are adjourned sine die with liberty to restore after the statement of claim in HCA 1449 is filed by the Administrator or at the same time as the consolidation summons, whichever is the earlier.

G. COSTS

67.  Costs of and incidental to this CMC, including this hearing, be paid out of the Estate to the Administrator.

68.  On a nisi basis, costs of this CMC be in the cause, to be apportioned as follows: 30% each for HCA 16, HCA 17 and HCA 1449; and 10% for HCA 863.

69.  Finally, I wish to give this reminder: documents (even decisions) relating to Beddoe applications should not be disclosed to the trial judge or even the judge taking deposition as they may contain the Beddoe Judge or Administrator’s views as to the merits of a case.

70.  I thank counsel for their assistance.

Mr C. Y. Li SC, Mr Ken To and Mr Chester Kwan, instructed by Hon & Co., for the Plaintiff in HCA 16 and HCA 17/2021

Mr W. Chao, of Wellington Legal LLP, for the Defendant in HCA 863/2023

Ms Ebony Ling, instructed by K.B. Chau & Co., for the 1^st and 2^nd Defendants in HCA 16 and HCA 17/2021, and the 1^st Defendant in HCA 1449/2023

Ms Sabrina Ho and Mr Brian Fan, instructed by P.C. Woo & Co., for the 4^th Defendant in HCA 16/2021 and HCA 17/2021

Mr Cheng Tsz Ying, of T.C. Foo & Co., for the Administrator

The 3^rd Defendant in HCA 16/2021 was not represented and did not appear

The 4^th Defendant in HCA 17/2021 was not represented and did not appear

HCA 16/2021 and
HCA 17/2021

(Heard Together)

[2024] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 16 OF 2021

________________________

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17 OF 2021

________________________

________________________

DECISION ON COSTS

________________________

A. INTRODUCTION

1.  By the Decision dated 30 November 2023 (“Decision”)  (for ease of reference, abbreviations used in the Decision will be adopted herein), this court:

(1)  Allowed §§1 and 2 of Mother’s Summonses dated 6 January 2023 (the “Deposition Summonses”).  They concern Mother’s application for her evidence to be taken by way of deposition in both HCA 16/2021 (“HCA 16”)  and HCA 17/2021 (“HCA 17”), to be examined on oath before a Master: see Decision §§2, 30.

(2)  Dismissed §3 of the Deposition Summonses, which relate to the further aspect of Mother’s application to have her depositions taken by VCF: see Decision §31.

(3)  Ordered on nisi basis (the “Costs Orders Nisi”)  that:

(a)  The costs of and occasioned by §§1 and 2 of the Deposition Summonses be costs in the cause; and

(b)  The costs of and occasioned by §3 of the Deposition Summonses be paid by Jeffrey, Eileen and Mother to Jimmy, to be taxed if not agreed.

2.  By Summonses dated 19 December 2023 (“Mother’s Variation Summonses”), Mother applies to vary the Costs Orders Nisi – only concerning the first aspect, ie §§1 and 2 of the Deposition Summonses:

(1)  The costs of and occasioned by §§1 and 2 of the Deposition Summonses up to and including 31 August 2023 be paid by Jimmy (to be taxed if not agreed), and thereafter be in the cause.

(2)  For the avoidance of doubt, no issue is taken by Mother on §3 (ie the VCF aspect which Mother failed).

3.  The relevant date of 31 August 2023 is important.  Only then did Jimmy indicate consent to Mother’s application for deposition.

4.  Similar terms of variation are sought by Jeffrey and Eileen by their Summonses also dated 19 December 2023 (“Jeffrey & Eileen’s Variation Summonses”).

B.  RELEVANT LEGAL PRINCIPLES

5.  Where the court sees fit to make any order as to the costs of or incidental to any interlocutory proceedings, it may order the costs to follow the event or make such order as it sees fit: Order 62, rule 3(2A)  Rules of the High Court, Cap 4A (“RHC”).

6.  As to factor (e)  regarding the taking into account of “the conduct of all the parties” under Order 62, rule 5(1)  RHC, the following provisions in Order 62, rule 5(2)  RHC are pertinent:

(1)  whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; and

(2)  the manner in which a party has pursued or defended his case or a particular allegation or issue.

7.  Hong Kong Civil Procedure 2024 further provides at Practice Note 62/5/6:

“The judge should consider whether or not the parties have conducted the litigation in accordance with a system of civil litigation which is designed to enable the parties to know where they stand at the earliest possible stage and at the lowest practicable cost, so that they may make informed decisions about their prospects and sensible conduct of their cases.Ford v GKR Construction Ltd [2000] 1 WLR 1397 (CA); and Amec Process & Energy Ltd v Stork Engineers and Contractors BV (Costs Order)  [2000] BLR 70.” (Emphasis supplied)

8.  Ultimately, the court has a wide and general discretion in matters relating to costs, and how the discretion ought to be exercised in any given case must depend on the facts and circumstances of the case: China Medical Technologies, Inc (in liquidation)  v Wu Xiaodong[2024] HKCA 310, §8.

C.  DISCUSSION

9.  The criterion laid down by Order 39, rule 1(1)  RHC for examination of witnesses before trial is where it appears necessary for the purposes of justice: Kwan Kwok Ki v Wong Tung Hung[2023] HKCFI 150 at §§15-16.  The burden of proving so is on the applicant: Delco Participation BV v HWH Holdings Ltd[2021] HKCFI 249, §25.

10.  The witness’s advanced age alone does not automatically entitle her to be examined before trial, something more is required to make it necessary for the purposes of justice to do so.  When considering an application under Order 39, rule 1(1)  RHC, the relevant issues in the dispute need to be identified so that the materiality of the evidence of the witness sought to be examined can be considered: Kwan Kwok Ki, Supra at §18.

11.  To demonstrate the materiality of her evidence, all Mother said in her 1^st affirmations in support of the Deposition Summonses were in §§10-11 of the HCA 16 affirmation and §9 of the HCA 17 affirmation.  These paragraphs have been set out in Mother’s Submissions at §8.

12.  After considering Mother’s affirmations in support, Jimmy clearly stated in his affirmations in opposition that Mother had failed to adequately explain why it was necessary for her to give evidence by deposition ahead of the trial.

13.  In relation to HCA 17:

(1)  It was only after Jimmy questioned the necessity of her evidence in his affirmation in opposition, Mother claimed for the first time in her reply affirmation that she had “primary knowledge” over some transactions, and that Jeffrey and Eileen did not have “equal level of participation”.  She also claimed for the first time that she made the decision for various transactions involving Leebury.

(2)  It was only at the stage of filing her affirmation in reply, Mother for the first time tried to suggest that she had knowledge of a higher quality than the one possessed by Jeffrey and Eileen, although even then she failed to explain why.

14.  In relation to HCA 16, it was only in her affirmation in reply, for the first time, Mother stated that :

(1)  She claimed to have had conversations with the Deceased prior to transferring the MetroCorp Shares to Leslie which touched on the purpose of the transfer.

(2)  She claimed to have acquired properties jointly with the Deceased even before the MetroCorp Shares.

(3)  She claimed to have made the decisions for the specific transfers concerning the misappropriation involving Banner.

15.  I agree with Jimmy’s criticism that Mother had conducted the Deposition Summonses by initially holding her cards close to her chest rather than putting them on the table.  In her affirmations filed in support of the Deposition Summonses, she ought at least to have given sufficient indication of the gist of the evidence to allow Jimmy to consider the merits of her Deposition Summonses.

16.  It was Mother’s failure to set out the complete picture regarding the uniqueness or relevance of her evidence in her affirmations in support that led Jimmy to affirm in his affirmations in opposition that the necessity and materiality of Mother’s applications for deposition were not properly explained. 

17.  Mother’s affirmations in reply were filed on 29 June 2023.  Thereafter, Jimmy acted reasonably by writing to Mother’s solicitors on 31 August 2023 indicating that he would no longer oppose §§1 and 2 of the Deposition Summonses.  

D.  CONCLUSION

18.  For the reasons set out above, I would dismiss Mother’s Variation Summonses and Jeffrey & Eileen’s Variation Summonses.  Parties agree that costs should follow the event, I therefore order that:

(1)  The costs of Mother’s Variation Summonses be paid by Mother to Jimmy, such costs are to be taxed if not agreed; and

(2)  The costs of Jeffrey & Eileen’s Variation Summonses be paid by Jeffrey and Eileen to Jimmy, such costs are to be taxed if not agreed.

Mr Ken To and Mr Chester Kwan, instructed by Messrs Hon & Co, for the plaintiff

Ms Ebony Ling, instructed by Messrs K B Chau & Co, for the 1^st and 2^nd defendants

The 3^rd defendant was not represented and did not appear

Mr Brian Fan, instructed by Messrs P C Woo & Co, for the 4^th defendant

HCA 16/2021 and
HCA 17/2021
(Heard Together)

[2023] HKCFI 3047

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 16 OF 2021

________________________

________________________

AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 17 OF 2021

________________________

________________________

____________________

D E C I S I O N

____________________

A. INTRODUCTION

1.  These are the applications of the 4^th defendant (“Mother”) by summons dated 6 January 2023 in respectively HCA 16/2021 and HCA 17/2021 for her evidence to be taken by deposition before a Master and a direction that such deposition may be taken through video-conferencing facilities (“VCF”) (the “Deposition Summonses”).

2.  By letter dated 31 August 2023, the plaintiff indicated that he would no longer oppose §§1 and 2 of the Deposition Summonses, ie Mother can have her evidence taken by deposition before a Master.  However, the plaintiff maintains his opposition to the deposition being taken by VCF: see §3 of the Deposition Summonses.  Hence, the outstanding issue in the Deposition Summonses which requires determination by the court is whether Mother’s deposition can be taken by VCF.  In this regard, Mother’s application for her examination to be conducted by VCF from Singapore is “strongly supported” by the 1^st and 2^nd defendants.

B.     RELEVANT FACTUAL BACKGROUND

3.  The relevant factual background of these proceedings has been set out in the plaintiff’s Skeleton Submissions as follows.

4.  The present proceedings are common law derivative actions commenced by the plaintiff (“Jimmy”) as minority shareholder of Banner (China) Investment Company Limited (“Banner”) in HCA 16/2021 and Leebury Investments Limited (“Leebury”) in HCA 17/2021 respectively.

5.  The parties are family members.  Jimmy and the 2^nd defendant (“Eileen”) are respectively the son and daughter of Mother.  The 1^st defendant (“Jeffrey”) is the husband of Eileen.  The father (the “Deceased”) passed away back in 2008.

6.  Banner and Leebury’s shareholding and directorship are as follows:

(1)  Banner:

(a)  Shareholders are Mother (75%), Eileen (12.5%) and Jimmy (12.5%);

(b)  Directors were Jimmy, Jeffrey and Mother but Jimmy has been removed as director since 20 July 2022;

(2)  Leebury:

(a)  Shareholders are a family-controlled company called Ang’s Holdings Limited (92.5%), Mother (5%), Eileen (1.25%) and Jimmy (1.25%);

(b)  Directors are Jimmy and Mother.

7.  In HCA 16/2021:

(1)  Jimmy’s case is that the defendants misappropriated and/or are liable for the misappropriation of two categories of assets belonging to Banner: (i) 63,000 shares of East West Bankcorp (“EWB Shares”), and (ii) funds in the amount of around US$4.1 million. In particular, Jimmy’s primary case is that the EWB Shares are held by Banner as the legal owner for the benefit of the estate of the Deceased (the “Estate”);

(2)  Jeffrey, Eileen and Mother’s case is that the EWB Shares are held on trust for Mother, and not for the Estate.  They also claim that Jimmy consented to or acquiesced in the transfer of the assets away from Banner;

(3)  Jimmy has helpfully summarised the issues regarding the EWB Shares:

(a)  The EWB Shares were originally shares of MetroCorp Bancshares, Inc (“MetroCorp Shares”). A batch of such MetroCorp Shares were initially held by Gaumnitz Inc (“Gaumnitz”) since 1991;

(b)  Gaumnitz was ultimately held by Fentham Corporation (“Fentham”).  The defendants’ case is that Fentham was held by the Deceased and Mother on joint tenancy;

(c)  The key event occurred in 1997.  The parties agree that the MetroCorp Shares were transferred from Gaumnitz to a Leslie Looi Meng (“Leslie”).  The defendants say that the transfer was without consideration so that Leslie continued to hold the MetroCorp Shares on behalf of Gaumnitz.  Jimmy on the other hand says it was a sale of the shares to Leslie with the Deceased paying the consideration, so that the MetroCorp Shares came to be held by Leslie on behalf of the Deceased;

(d)  The MetroCorp Shares were eventually transferred to Banner for no consideration in 2013 and exchanged for the EWB Shares in 2014;

(e)  As such, the critical incident which would establish the true beneficial ownership of the EWB Shares would be the transfer of the MetroCorp Shares from Gaumnitz to Leslie in 1997.

8.  In HCA 17/2021:

(1)  Jimmy’s case is that the defendants misappropriated and/or are liable for the misappropriation of various shares, funds and loans belonging to Leebury; and

(2)  The case of Jeffrey, Eileen, and Mother is that the assets transferred away from Leebury belonged beneficially to Mother.  They also claim that Jimmy consented to or acquiesced in the transfer of the assets away from Leebury.

C.      RELEVANT LEGAL PRINCIPLES

9.  The general principles for the use of VCF are summarised by Anthony Chan J in the oft-cited case of Re Nobility School Limited[2020] HKCFI 891 at §9:

“(1) The giving of evidence by video conferencing facilities (‘VCF’) is an exception;

(2) The starting point is that proceedings are conducted in court. I would add that this is more important when it comes to a trial;

(3) Sound reason is required to justify a departure from the starting point;

(4) The solemnity of court proceedings and its atmosphere is highly important in the taking of evidence;

(5) The court may be more disposed to exercise its discretion to allow evidence by VCF in respect of technical or purely factual evidence which involves no serious issue on credibility or relatively unimportant evidence;

(6) Where the credibility of the witness is seriously contested, it is important for the witness to be examined under the solemn atmosphere of the court;

(7) Costs and convenience may be important considerations which the court will have to weigh in the determination of the application;

(8) Ultimately, it is a matter of judgment of the court choosing the course best calculated to achieve a just result by taking into account all the material considerations, including whether the witness is capable of attending the proceedings, any prejudice to the other party, the Underlying Objectives, any delay to the proceedings and practical considerations like the availability of the facilities (see Practice Direction 29).” (Emphasis added)

10.  As to the sort of medical evidence which would show that a witness is incapable of attending the proceedings thus justifying the taking of evidence via video link, reference can be made to Daimler AG v Leiduck (No 2) [2013] 2 HKLRD 822, where at §19 Barma JA said this: “Those cases are, in my view, far removed from the present case, where the uncontradicted medical evidence is to the effect that it would be life-threatening for the 1^st defendant to have to travel to Hong Kong” (Emphasis added).  At §20, Barma JA re-emphasised the opinion of the two doctors that “it would be hazardous to the 1^st defendant’s life and health to have to undertake the journey to Hong Kong”.

11.  Apart from the Re Nobility School Ltd case, the Court of Appeal has also emphasised the importance for evidence to be given in the solemnity of the court and for the applicant to justify why she should be accorded the privilege of using VCF.  In Mahajan vHCL Technologies (Hong Kong) Ltd [2010] 5 HKLRD 119, Rogers VP at §5 cited the following passages from a previous decision for convenience:

“[16] The next question addressed by the Judge was as to whether the cross-examination could be conducted whilst the respondent was in Macau using VCF. The Judge approached this question on the basis that the giving of evidence by VCF was an exception rather than the rule and that it would be a matter of privilege accorded to the respondent and not a matter of right for him to be allowed to do so.

[17] In my view the Judge was quite correct in this approach. The starting point must be that proceedings are conducted in court. Mr Kat, who appeared on behalf of the respondent, took issue with the approach of the Judge where it was said in para 28 of the judgment that ‘On the other hand, witnesses are obliged by law, the solemnity of the court atmosphere and the threat of immediate sanction to give evidence on oath or under affirmation and to tell the truth.’

[18] Whether or not the threat of immediate sanction is something that weighs heavily on witnesses is, perhaps, a matter of conjecture. Nevertheless I have no doubt that the atmosphere of a court is highly important as regards the taking of evidence. The solemnity of court proceedings and its atmosphere is something which, I have no doubt, plays an important role in the way justice is administered.

[19] There is no doubt that VCF is a highly useful tool. It must be a question of judgment in each case as to whether VCF should be used for the taking of evidence. No doubt on those occasions when the witness is giving evidence that is technical or purely factual without important issues as to credibility, a court may be more disposed to allow evidence to be given by the use of VCF. Questions of cost and convenience are, no doubt, also important considerations that the court will have to weigh in deciding whether to allow evidence to be given using a VCF. But first and foremost, it seems to me, that the Judge was correct in his approach that a party wishing to give evidence using VCF should establish a sound reason why that privilege should be accorded. The Judge concluded in para 57 of his judgment, ‘It is thus clear that giving evidence via video link is an exception rather than the rule. It is for the party wishing to use video link to justify why he should be accorded with this exceptional treatment.’” (Emphasis added)

12.  The approach in Re Nobility School Ltd and Mahajan v HCL Technologies (Hong Kong) Ltd has once again been endorsed by the Court of Appeal even during the COVID-19 pandemic: Standard Chartered Bank (Hong Kong) Limited v Nie Hai Yan Annie [2021] 2 HKLRD 425 at §18.

D.  APPLICATION FOR DEPOSITION TO BE TAKEN BY VCF

13.  The default position is for evidence to be taken in person in court, and it is for Mother to justify why she should be accorded the privilege of departing from that.

14.  While the authorities on the use of VCF concern its use during examination of witnesses at trial, there is no reason why the rationale does not apply to the examination of a witness during the taking of deposition.  Rogers VP made it abundantly clear that the court is the place for witnesses to give evidence: Mahajan v HCL Technologies (Hong Kong) Ltd, Supra,at §7.

15.  In the circumstances of the present case, the importance of Mother being cross-examined in a solemn court setting cannot be over emphasised as it is not controversial that her evidence is likely to be hotly contested.  A major issue that divides the parties is whether the MetroCorp Shares belonged to the Deceased solely or to Mother.  She is expected to be heavily cross-examined on her knowledge and understanding of the ownership of the MetroCorp Shares as well as the credibility of her explanations.  This is especially the case as Mother claims in her 2^nd Affirmations filed in these proceedings that she has personal knowledge of conversations with the Deceased that would explain the purpose of the said transfer to Leslie.  On her evidence, she is the only person apart from Leslie who has direct knowledge of the arrangement back in 1997.  She needs to be thoroughly examined on these alleged conversations.

16.  The question for determination is whether Mother has sufficient grounds so strong as to justify the exception of using VCF despite all its drawbacks.  The grounds relied on by Mother to justify the use of VCF are that:

(1)  She is likely to face greater health risks of being exposed to COVID-19 if she is required to travel overseas;

(2)  The trip to Hong Kong by flight will be physically demanding;

(3)  She is at risk for fall from her osteoporosis condition;

(4)  Dr Timothy Lee (“Dr Lee”) issued two letters on 6 December 2022 and 26 September 2023 (“First Letter” and “Second Letter” respectively, together the “Letters”) purporting to give medical analyses on Mother’s health conditions.  In the First Letter he said of Mother that “it is best to avoid travel”, which was subsequently updated in the Second Letter to “she is not fit to fly for at least the next 12 months because of pain, multiple compression fracture and fall risk” after her recent fall in August 2023.

D1.  Is Mother unable to travel to Hong Kong?

17.  As submitted by Jimmy, the evidence strongly suggests that Mother’s osteoporosis condition and mobility issues are not so severe as to interfere with her ability to travel to Hong Kong.  Before her recent fall in August 2023, on Mother’s evidence she only needed to rely on a walking stick from time to time.

18.  In §16 of her 1^st Affirmation filed in HCA 16/2021 dated 3 January 2023, Mother described her condition as follows:

“I have been resident in Singapore since 1978. Although it is possible for me to travel to Hong Kong, as an elderly in my 80s I am likely to face greater health risks of being exposed to COVID-19 should I be required to travel overseas, in particular the risk of air transmission on the flight. Such a flight and trip would also be physically demanding to me, as I have to rely on a walking stick from time to time in view of my mobility problems, which is exacerbated by my osteoporosis condition that renders me at risk for fall. …”

19.  This tallies with the opinion of Dr Lee expressed in the First Letter that Mother was “best to avoid travel”, but not impossible to do so.

20.  After her fall in August 2023, Mother’s evidence is only that she could not walk and was confined to a wheelchair for 2 to 3 weeks.  She acknowledges that the injuries suffered in the recent fall have improved gradually.  There is no suggestion at all that the recent fall has any permanent effect on Mother or that she would not be able to return to her condition prior to the fall when she made her 1^st Affirmation in January 2023.

21.  Further, even after her recent fall in August 2023, Mother was able to fly to Shanghai on 6 September 2023, just over a month after the fall, and stayed there until 17 September 2023.

22.  I note that the flight from Singapore to Shanghai takes about 5.5 hours, whereas the flight from Singapore to Hong Kong takes only about 3.5 hours, leaving aside the relative ease and convenience to enter Hong Kong through its airport.  If Mother could travel to Shanghai soon after the fall for business, there is no reason why she cannot travel to Hong Kong to give her deposition.

23.  Importantly, Dr Lee’s Letters fall far short of establishing that Mother is incapable of travelling to Hong Kong.  Certainly, there is no evidence that Mother’s travelling to Hong Kong will be “life-threatening”.

24.  Dr Lee’s First Letter of 6 December 2022 is one and a half pages in length.  It purports to make diagnoses such as “subacute fractures”, “compression factures”, “old fractures” and “instability(anterolisthesis)” without explaining how these problems affect Mother’s ability to travel.  In the last paragraph of the First Letter, Dr Lee stated that Mother was at risk for fall and further osteoporotic fractures and then merely proffers his opinion that “it is best to avoid travel” without stating that it is impossible to do so.

25.  Dr Lee’s Second Letter of 26 September 2023 is even shorter and consists of only three paragraphs.  He confirmed that Mother was able to walk when he reviewed her on 18 September 2023.  He claimed that her health condition deteriorated since returning to Singapore from Shanghai, but he gave no explanation on what he meant by “deteriorated”.  In the last paragraph, Dr Lee advised that Mother was “not fit to fly for at least the next 12 months because of pain, multiple compression fracture and fall risk”, but there was no assessment of the potential consequences of Mother flying.  In particular, I note that in relation to “pain”, at the second paragraph of the Second Letter, Dr Lee only referred to pain “when she walks five minutes …”.  In the circumstances, there is no reason why Mother cannot come to Hong Kong with the assistance of a wheelchair, which will of course also reduce any “fall risk”.

26.  In short, the objective evidence falls way short of establishing that Mother is incapable of travelling to Hong Kong when the time comes for her deposition to be taken.

27.  Jimmy has already agreed for Mother’s evidence to be taken by deposition, I agree it would only be fair for the taking of her evidence to be conducted in person in the court in Hong Kong.

28.  In further support of §3 of the Deposition Summonses, Mother submits generally that the following measures can be ordered by the court to ensure fairness of the procedure:

(1)  Jimmy’s legal team can send representatives to attend the Singapore Residence or the neutral venue to observe the entire process of the deposition;

(2)  The VCF arrangements must meet the technical requirements of the court;

(3)  Video recording of the deposition can be taken so that Mother’s demeanour during the deposition can be recorded real time.

29.  However, as submitted by Jimmy, if a witness is able to travel to Hong Kong, there is really no reason to consider other lesser means of taking the deposition at all, as the starting point is that the proceedings should be conducted in court.

E.  CONCLUSION

30.  For the reasons set out above, I would make an order in terms of paragraphs 1 and 2 of the Deposition Summonses.

31.  However, I would refuse Mother’s application for the direction that the deposition be taken through VCF.  Accordingly, paragraph 3 of the Deposition Summonses are dismissed.

32.  As to costs, I order that the costs of and occasioned by paragraphs 1 and 2 of the Deposition Summonses be costs in the cause.  I further order that the costs of and occasioned by paragraph 3 of the Deposition Summonses be paid by the 1^st, 2^nd and 4^th defendants to the plaintiff, such costs are to be taxed if not agreed.

33.  The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

34.  Lastly, I express my gratitude to counsel for their helpful assistance in this matter.