CHAN LAAM AND OTHERS v. KING & COMPANY (a firm)

HCMP 1399/2023

[2024] HKCFI 1330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1399 OF 2023

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REASONS FOR DECISION

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1.  On 21 February 2024, the Court granted the Plaintiffs’ application for the production and disclosure by the Defendant of documents requested in the Plaintiffs’ originating summons dated 24 August 2023 (“the Decision”). This is the Defendant’s application to vary the costs order nisi in favour of the Plaintiffs.

2.  The relevant background and the reasons for the order made are set out in the Decision. These Reasons for Decision on the Defendant’s application will adopt and use the nomenclature used in the Decision.

3.  On 6 March 2024, pursuant to the order dated 21 February 2024, the Defendant provided copies of the Requested Documents to the Plaintiffs and, on the same day, issued its summons to vary the costs order nisi.

4.  The Defendant’s application is based on the grounds considered below.

Third-party discovery and unusual nature of the Plaintiffs’ application

5.  Ms Queenie Lau SC, senior counsel for the Defendant, acknowledged that the Court has a wide discretion over costs. In the present case, she emphasised that the Defendant did not hold the documents for its own benefit. It acted on the instructions of Kingsun and the Deceased.

6.  It was submitted that the Defendant was giving discovery as a third party. Therefore, the usual rule on costs in the context of third party discovery applications under section 41 and 42 of the High Court Ordinance applies and the Defendant is entitled to the costs of the Plaintiffs’ OS: see RHC Order 62 rule 3 (12).

7.  It is clear from §47 of the Decision that the Plaintiffs’ application was granted pursuant to their substantive rights against the Defendant. Had relief been granted on grounds of pre-action discovery or on Norwich Pharmacal principles, the Plaintiffs’ application would have been an application within sections 41 and/or 42 of the HCO and so would have triggered RHC Order 62 rule 3 (12).

8.  Mr Kerby Lau, counsel for the Plaintiffs, submitted that the Defendant was conflating the Plaintiffs’ substantial rights with alternative arguments based on pre-action discovery and Norwich Pharmacal. The Plaintiffs asserted their substantive rights against the Defendant by bringing these proceedings over the Requested Documents that were in the Defendant’s possession and control. They succeeded.

9.  Analysed in that context, the Defendant was not a third party in these proceedings but the very party in possession and control of the Requested Documents over which the Plaintiffs had substantive rights. In those circumstances, there is no reason in principle why the general rule that costs follow the event should not apply. Re NDT (BVI) Trading Ltd [2009] 2 HKLRD 409 at §§32-34 and Wong Kar Gee Mimi v Hung Kin Sang Raymond [2011] 5 HKLRD 241 at §99 are examples of the Court granting discovery/production of documents with costs following the event.

10.  The Defendant drew attention to the fact that in the NDT case the unsuccessful party did not contest the costs order sought. However, that cannot detract from the costs order actually made. Further, whether or not what is stated in §99 of the Wong Kar Gee Mimi case conflicts with the principles stated in SES Contracting Limited & Ors v UK Coal plc & Ors [2007] 5 Costs LR 758 at §17 as the Defendant sought to suggest is beside the point since the Defendant is not a third party. In any event, the real question in SES Contracting was whether opposition to the application for disclosure was unreasonable[1].

11.  Even in a contested application against third parties for the purpose of investigations, the costs follow the event approach should be applied where the defendant failed to adopt a neutral stance: see Ip Pui Lam Arthur and Ip Pui Sum (Joint and Several Trustees in bankruptcy) v F Zimmern & Co, HCMP 995/2014, unrep., 6 October 2014 at §§6-7.

The Defendant acting reasonably

12.  Unsuccessful opposition to discovery application does not mean that the plaintiff is entitled to its costs. It is only when it is clearly unreasonable to oppose the application or the manner of the opposition was so unreasonable or there is misconduct on the part of the defendant that the court will make the third party bear costs of both parties. See Lau Tsz Hung Ringo v First Refrigeration Engineering Limited, HCMP 1166/2013, 4 of July 2013 at §41.

13.  The Defendant’s position is that it has acted reasonably throughout because it had genuine concerns over potential conflict of interests, confidentiality and/or privilege. The Defendant referred to The Hong Kong Solicitors’ Guide to Professional Conduct, Vol 1, 3^rd edition at §8.01 and quoted extensively from the commentary to justify its conduct.

14.  During the pre-application period of 10 months from 24 October 2022 to 24 August 2023 when the parties engaged in correspondence over the Plaintiffs’ requests for information concerning the Requested Documents, the Defendant made known its concerns in writing on multiple occasions[2].

15.  Faced with the Defendant’s intransigence, the Plaintiffs filed the OS and P1 1^st on 28 August 2023 seeking the production of the Requested Documents (comprising (1) the Company Documents and (2) the Trust Documents) based on the Plaintiffs’ substantive rights. The Defendant filed 2 substantive affirmations in opposition[3] thus requiring a substantive hearing.

16.  The Requested Documents described in §25 of the Decision are basic documents that relate to the status of the Plaintiff(s) as shareholder and/or beneficiaries.

17.  The Court rejected the Defendant’s opposition based on confidentiality and LPP[4].

18.  As regards the Defendant’s concerns over potential conflict of interests mentioned in Mr Ching’s 4^th affirmation dated 6 March 2024 (“Ching 4^th”) (at §6) filed in support of the Defendant’s present application, although mentioned in the pre-correspondence exchanges, it did not feature as a ground of opposition in the Defendant’s written skeleton dated 19 January 2024 for the substantive hearing.

19.  On 6 March 2024, in compliance with paragraph 1 (a) the OS, the Defendant filed Mr Ching’s 3^rd affirmation (“Ching 3^rd”) and provided copies of the Requested Documents by way of letter through their solicitors (“the Disclosure Letter”) both dated 6 March 2024. The Defendant produced 168 pages of documents.

20.  The Plaintiffs submitted (which I accept) that upon perusal of the Disclosure Letter, it transpires that:

(1)  the Defendant’s objections do not apply to a substantial number of the documents produced[5];

(2)  the Defendant all along knew that

(i)  P1 has been a shareholder of Kingsun since 30 July 2001;

(ii)  the Defendant maintained contact with Portcullis in relation to the affairs of Kingsun: and

(iii)  there was a draft declaration of trust whereby P2 would be the beneficial owner of over 90% of the shares in Kingsun;

(3)  despite that knowledge, the Defendant knowingly transferred away documents sought by the Plaintiffs that clearly belong to the Plaintiffs. They include documents transferred to Madam Lau “that may be subject to [the Plaintiffs’] requests”[6]. Not only did the Defendant make such a transfer without retaining a copy of the same, it even saw fit to transfer away the share certificate in Kingsun in the name of P1 to Madam Lau[7] when it could not possibly have any basis for doing so given its knowledge of the matters set out in (2) above.

21.  Apart from those matters that cannot be gainsaid,

(1)  as is evident from §§12-24 and 32 of the Decision, the Defendant made misleading representations and resorted to half-truths when responding to the Plaintiffs’ enquiry made on 12 April 2023 in relation to the Defendant’s role. That is shown by the following sequence of events:

(i)  on 12 April 2023, the Plaintiffs enquired whether the Defendant had ever acted as intermediary/administrator/ other agent between Kingsun and Portcullis;

(ii)  on 2 May 2023, almost 3 weeks later, the Defendant replied that they “are not” acting in such capacities, without supporting documents;

(iii)  on 17 January 2024, more than 8 months after the 12 April enquiry, the Defendant “clarified” its reply of 2 May 2023 and admitted that it performed services as the “administrator” of Kingsun until it resigned as such on 24 April 2023[8];

(2)  the belated admission in (1) (iii) above shows that by delaying its reply to the 12 April 2023 enquiry till after 24 April 2023, the Defendant was able to use the present tense in its response of 2 May 2023, leaving it ambiguous whether it had ever acted as such;

(3)  as is evident from Ching 3^rd (at §§15 and 19) and the Disclosure Letter (item 36), the Defendant knew all along that P2 was an intended beneficiary of the trust. It was information the Plaintiffs sought from inception[9] as to the existence of a trust or a will. The Defendant avoided answering the “trust” aspect of the enquiry and, instead, offered information relating to the “will” aspect when there is no ostensible reason for not addressing both aspects. In the circumstances, the only reasonable inference is that the choice was deliberate.

Conclusion

22.  As an alternative to its application to vary the costs order nisi in favour of itself, the Defendant submitted that there be no order as to costs.

23.  In light of the matters described above, by no stretch of the imagination could one consider the Defendant’s conduct to be reasonable after the commencement of these proceedings in opposing the Plaintiffs’ application. Had it been truly neutral, it would simply have left it to the Plaintiffs to obtain an order for disclosure from the Court without actively opposing the Plaintiffs’ application. Instead, its conduct shows that at every turn the Defendant was seeking to obstruct, hinder, thwart and delay the Plaintiffs’ efforts to seek information to which they are entitled.

24.  In the circumstances, I consider it appropriate to apply the usual rule that costs follow the event. Accordingly, the costs order nisi is made absolute.

25.  The Defendant’s application is dismissed with costs, with certificate for counsel, such costs to be summarily assessed and payable forthwith.

26.  The directions given in §66 of the Decision apply and are varied only to the extent that the Plaintiffs are to lodge their revised statement of costs within 7 days hereof to include the costs of and incidental to the Defendant’s application to vary the costs order nisi.

Mr Kerby Lau, instructed by King & Wood Mallesons, for the 1^st to 3^rd Plaintiffs

Ms Queenie Lau SC, instructed by Clyde & Co, for the Defendant

HCMP 1399/2023

[2024] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1399 OF 2023

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DECISION

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1.  This is the application of Chan Laam (“P1”), Choy Ka Leuk (“P2”) and Choy Ka Shing, a minor suing by his mother and next friend, Chan Laam (“P3”) (collectively “the Plaintiffs”) by originating summons dated 24 August 2023 (the “OS”) seeking, inter alia, production and disclosure from King & Company (a Firm) (the “Defendant”) of the following documents (the “Requested Documents”):

(1)  All documents showing, recording and/or referring to (i) the transfer, allotment, registration or otherwise placing of shares in Kingsun Consultant Limited (“Kingsun”) to/under the name of P1; (ii) P1’s interest, title and/or ownership in any of the shares in Kingsun; (iii) the Register of Members of Kingsun (“the Company Documents”).

(2)  All documents showing, recording and/or referring to any trust or arrangement under which Ps is/are the beneficiary, recipient, transferee or object (“the Trust Documents”).

2.  At the outset of the hearing, the court granted leave to the Defendant to file the 2^nd affirmation of Ching Kwok Ho Samuel (“Mr Ching”), a partner of the Defendant firm, dated 17 January 2024 (“Ching 2^nd”).

3.  At the conclusion of the hearing, the decision was reserved which I now give.

Background facts

4.  P1 had been in a relationship since the late 1990s with the late Choy Willian Andrew Man Shau (“the Deceased”) who died on 23 June 2022.

5.  P2 (born on 27 August 2000) and P3 (born on 20 June 2006) are the children of P1 and the Deceased. P1 lost contact with the Deceased since about 25 May 2022.

6.  At the time of his death, the Deceased was married to Madam Lau Yuet Wan Yvonne (“Madam Lau”). P was informed of his death by Lau 20 October 2022

7.  The Defendant is a firm of solicitors. The Defendant, and in particular, Mr Ching, a partner in the Defendant firm assisted the Deceased with various legal affairs during his lifetime.

8.  Shortly after P2’s birth, the Deceased purchased a multi-unit property in Shanghai (“the PRC Property”) and established a company (“the PRC Company”) to hold the PRC Property for the purpose of providing for P1 and P2.

9.  P1 was appointed the general manager of the PRC Company. The net rental income of the PRC Company has been and continues to be deposited into P1’s bank account under the arrangement with the Deceased.

10.  The PRC Company was a wholly owned subsidiary of Kingsun Consultant Limited (“Kingsun”) a BVI company incorporated 5 July 2001. A search made on an online database maintained by the International Consortium of Investigative Journalists and subsequently confirmed by the Register of Companies search report of Kingsun shows both the Deceased and P1 as Kingsun’s shareholders since 30 July 2001, the Defendant as the intermediary of Kingsun, and Portcullis (BVI) Limited (“Portcullis”) as its registered agent.

11.  It is P1’s evidence[1] that when the PRC Company and Kingsun were established in 2001, the Deceased expressly told her that those companies were set up for the benefit of P1 and P2, and had made inter alia the following representations to P1 (“the Deceased’s Representations”) that:

(1)  the Deceased had made arrangements to give P1 and/or their children the full beneficial ownership and control of the PRC Company and Kingsun (and the PRC Property);

(2)  he had signed and executed certain document(s) to that effect (“ the Executed Document(s)”);

(3)  such Executed Document(s) was/were left with the Defendant;

(4)  once the Deceased passed away, Mr Ching of the Defendant would contact P1;

(5)  provision made for the Plaintiffs would be separate from any provision for Madam Lau.

  (a) Attempts to obtain production of documents from the Defendant

12.  After learning of the Deceased’s death, in light of the Deceased’s Representations, the Plaintiffs made several attempts by themselves to make enquiries of Mr Ching, and subsequently by their then and current legal representatives to obtain the Trust Documents from the Defendant[2].

13.  On 24 October 2022, P2 wrote to Mr Ching (on behalf of himself and P1) stating their understanding that the Deceased had entrusted Mr Ching “with his wishes either in the form of a trust, or a will, regarding the status of the ownership of [the PRC company] and other assets”. Mr Ching’s response only offered information as to the existence of a will. He further stated that the Defendant was acting for Madam Lau to deal with the estate of the Deceased.

14.  When the Plaintiffs’ former solicitors made enquiries on their behalf, the Defendant declined to respond due to a potential conflict of interest, stating that Madam Lau had instructed another firm to deal with the enquiries made.

15.  On 12 January 2023, the Plaintiffs were informed by another firm (“CCBH”) that they act for Madam Lau, “the sole executrix and trustee of the Deceased’s last will made on 26^th April 2021”.

16.  On 18 January 2023, KWM, the Plaintiffs’ current solicitors requested information on 6 matters from the Defendant who declined to respond, asserting legal professional privilege (“LPP”).

17.  All those attempts were thus unsuccessful. Meanwhile, on 9 November 2022, the Plaintiffs filed a caveat in HCCA 6106/2022.

  (b) Request for Company Documents

18.  In response to KWM’s request for Company Documents, on 28 February 2023 Portcullis asserted that KWM was “not the authorized contact person for [Kingsun]” and Portcullis had delivered the message to the authorized contact person for him to deal with.

19.  On 15 March 2023, Portcullis informed KWM that the authorized contact of Kingsun refused to provide any information as to Kingsun.

20.  When on 12 April 2023 KWM requested to be provided with the identity and contact details of the authorized contact, they were informed that Portcullis needed to obtain the authorized contact’s permission. On 13 April 2023 Portcullis replied that they would “obtain an authorization” before proceeding and would inform KWM upon receipt of any update.

21.  Portcullis never provided any update.

22.  KWM then sought the Defendant’s confirmation as to whether it had acted as intermediary between Kingsun and Portcullis and requested to be provided with a certified copy of Kingsun’s register of members.

23.  The Defendant’s response some 3 weeks (on 2 May 2023) later stated that they “are not the intermediary, administrator or other agent of the Company” (emphasis added).

24.  The upshot of the Plaintiffs’ unsuccessful attempts in obtaining information is that the Plaintiffs remain entirely ignorant of the identities of (i) the trustee, if any, of any trust(s) set up by the Deceased in favour of the Plaintiffs; and (ii) the “authorized contact person” of Kingsun.

Overview

25.  The documents the Plaintiffs seeking are basic documents which would show whether P1 is a shareholder of Kingsun as well as their status (if any) as beneficiaries under the Trust.

26.  The basis of the Plaintiffs’ application against the Defendant for the Requested Documents has to be viewed in context. The relationship between the Deceased and P1 was long-standing, being upwards of 20 years, with 2 sons born from that relationship. It is highly relevant that the Deceased did provide for the Plaintiffs shortly after P2’s birth by giving P1 the net income of the PRC Company derived from the PRC Property. Against that backdrop, at this stage, there is no reason to believe that Deceased’s Representations are not credible.

27.  The Plaintiffs rely on 3 main grounds for the relief that they seek: (A) substantive right pursuant to common law, equity and/or statute: (B) pre-action discovery; and (C) the Norwich Pharmacal principle.

(A) Substantive right

    (1) The Company Documents

28.  Mr Kerby Lau, counsel for the Plaintiffs, submitted that a shareholder is entitled to “disclosure of all documents obtained by the Company in the course of the company’s administration of its affairs”, citing Re NDT (BVI) Trading Limited [2009] 2 HKLRD 409 at §14 a case where the Court granted a disclosure order against a BVI company. A company’s records relating to the transfer and allotment of shares and registration of shareholders clearly fall within the company’s administration of its affairs.

29.  A shareholder’s right to examine and access a company’s records is based on and originated from common law: Wong Kar Yee Mimi v Hung Kin Sang Raymond [2011] 5 HKLRD 241 at §9. Further, the basis of such a right of inspection is proprietary in nature[3].

30.  Ms Queenie Lau, counsel for the Defendant, submitted that the common law principles stated are directed at the company (or, where appropriate its officers) and not at 3^rd parties, citing CAS (Nominees) Limited v Nottingham Forest Plc [2002] BCC 145 at §11[4]. However, I can discern nothing in §11 of that authority that supports the proposition advanced.

31.  Be that as it may, as pointed out by Mr Lau, the right of inspection is an aspect of the shareholder’s proprietary interest in the company. In those circumstances, I agree that as a matter of principle there would be no reason why it should not apply to a 3^rd party.

32.  In the present case, on 12 April 2023, the Plaintiffs sought confirmation from the Defendant whether it ever acted as intermediary, administrator or other agent of Kingsun. It was not until 17 January 2024[5] that the Defendant clarified its reply of 2 May 2023[6] and admitted that it performed services as the “administrator” of Kingsun up until 24 April 2023 when it resigned as administrator.

33.  The Defendant did not assert in Ching 2^nd that it does not have possession, custody or control of the Company documents. Documents in the hands of the agent are subject to disclosure: Matthews and Malek on Disclosure (6^th edn) §§ 4-24.

34.  The fact that the Company Documents may be sought from 3^rd parties cannot affect the Plaintiffs’ entitlement to disclosure from the Defendant, particularly when the Plaintiffs have made attempts to obtain them from Portcullis who simply stonewalled the Plaintiffs’ enquiries. Given that attitude, the suggestion that the Plaintiffs should pursue its enquiries in the BVI cannot be taken seriously.

35.  It should be mentioned that the Plaintiffs put forward an alternative procedure to achieve their objective, namely via Section 740 of the Companies Ordinance and/or its analogous principles, an enactment designed for the protection of shareholder rights and interests.

36.  As I consider that the Plaintiffs should be granted the relief they seek in respect of the Company Documents from the Defendant, it is unnecessary to consider the alternative procedure.

    (2) The Trust Documents

37.  The Plaintiffs’ purpose in seeking disclosure of the Trust Documents is limited to ascertaining the existence and scope of their beneficial interests (if any) pursuant to any trust(s) set up by the Deceased. While they have reason to believe from the Deceased’s Representations[7] that such a trust or trusts may exist, their attempts to ascertain the same have come to naught.

38.  The Plaintiffs submitted that the jurisdiction to order disclosure of trust documents to beneficiaries is a wide and flexible jurisdiction, being part of the court’s jurisdiction to supervise and intervene in the proper administration of trust. It does not depend on any fixed transmissible beneficial interest or proprietary right.

39.  The Defendant’s answer that the requests should be directed to the trustee borders on the disingenuous: it is precisely because the Plaintiffs have no knowledge as to the identity of the trustee or trustees that they seek that information from the Defendant in light of the Deceased’s Representations.

40.  Murphy v Murphy [1999] 1 WLR 282[8] is authority for the proposition that a non-trustee may be ordered to disclose the names and addresses of the trustee. In Murphy, the court ordered the defendant (a non-trustee) to disclose the names and addresses of the defendant’s 1965 settlement to the plaintiff (a discretionary object of the trust).

41.  The Defendant sought to distinguish that authority on the basis that it involved very special and unusual facts. One may say that each case is different and very often the outcome turns on the particular facts. But the principle it does establish is that a disclosure order may be made against 3^rd parties if the circumstances warrant that relief.

42.  In general, equity should be protective of the interests of beneficiaries: Wong Poh Geak v Chin Lan Hong, unrep., HCMP 3956/2002, 29 January 2004 at §44. Orders for the discovery of documents, the rendering of accounts or the holding of enquiries form part of the arsenal of tools which the Court can deploy in exercising its equitable jurisdiction to ensure that trusts or estates are properly administered and that the Court’s jurisdiction is flexible jurisdiction: see per Reyes J in Wong Poh Geak at §9.

43.  An important element of the present case is that the Trust Documents do exist and were/are in the Defendant’s possession, custody or control: see the Deceased’s Representations §11(1)-(3) above. Significantly, in Ching 1^st §16, the Defendant referred to the existence of documents transferred to Madam Lau “that may be subject to [the Plaintiffs’] requests”.

44.  The Defendant, citing Chairman, Preliminary Investigation Committee, Medical Council of Hong Kong[2018] HKCFI 843 at §77, submitted that at common law, there is no independent cause of action whereby a person can ask an innocent 3^rd party to produce documents or information. The exceptions are where the principles in, for example, section 41 of the High Court Ordinance Cap 4, or Norwich Pharmacal are engaged.

45.  The Defendant accepted that the exceptions mentioned in §77 are not exhaustive. In the Medical Council case, the applicant seeking disclosure was the Preliminary Investigation Committee (“PIC”) of the Medical Council. The PIC claimed to have power to compel the Hospital Authority to provide certain documents without the patient’s consent. The Chairman, PIC and the Council’s functions and powers were limited to those expressly or impliedly conferred by statute. It was held that the mere need for the documents (to enable the Chairman to better discharge his duties) cannot justify disclosure and inspection orders if the governing statute does not authorise him to seek such orders. The statutory scheme did not expressly confer such a power and none could be implied.

46.  The Plaintiffs submitted (and I agree) that the Medical Council case is distinguishable because in that case there was no suggestion that the PIC had any substantive right to seek production.

    (3) Conclusion on substantive right

47.  For the reasons set out above, I accept the Plaintiffs’ submissions that, on the evidence, P1 does have a substantive right as shareholder of Kingsun to disclosure of the Company Documents and the Plaintiffs have a substantive right as potential beneficiaries to disclosure of the Trust Documents from the Defendant.

48.  In the circumstances, it is not strictly necessary to consider the other 2 grounds for disclosure, namely pre-action discovery and Norwich Pharmacal. I will do so briefly.

(B) Pre-action discovery and (C) Norwich Pharmacal

49.  As a preliminary matter, the Defendant submitted that the requirements that need to be met for “ordinary” pre-action discovery, and pre-action discovery under Norwich Pharmacal, are not the same. They are directed at different parties: the former is directed at wrongdoers whilst the latter is for those who are innocent.

50.  Further, the parties can only plead inconsistent alternatives if they have reasonable grounds for so doing: Order 18, rule 12A, §18/7/12. For those reasons, the Defendant submitted that it is not appropriate for there to be this ambiguity as to whether the Plaintiffs allege that the Defendant is a wrongdoer or not because that affects which of those jurisdictions on which they seek to rely.

51.  The Plaintiffs acknowledged that the principles applicable for pre-action discovery and for Norwich Pharmacal, as formulated, technically, and in a formulistic manner, are different. Nevertheless, it should be recognised that they are but different tools that the court has in terms of its jurisdiction to grant discovery.

52.  In that connection, it is salutary to have regard to Leung Yiu Ting v MTR Corp [2020] 5 HKC 550 at §14 where Anderson Chow J (as he then was) remarked that it is “important to recognise and bear in mind that the remedy is a flexible one the use of which should not be stultified by rigid concepts”.

    (1) Pre-action discovery

53.  The conditions for exercising the court’s power to order pre-action discovery are set out in Hong Kong Civil Procedure 2024 at §24/7A/5 and are not controversial. As regards the 5^th requirement, the applicant has to show that discovery is necessary either for dispensing fairly cause or matter or for saving costs.

54.  The Defendant submitted that when considering whether discovery is necessary, the court should have regard to third-party interests including confidentiality: Li Tak Yee Samuel v Societe Generale Bank and Trust and Another HCA 2478/2009 & 1198/2011, 16 April 2013 at § 35.

55.  It is common ground that confidentiality is not an absolute bar. The Defendant submitted that is a factor that should be taken into consideration is whether the disclosure sought is otherwise available, such as from other sources,: Tullett Prebon (Hong Kong) Limited v Chan Yeung Fong Nick & Ors, unrep., HCA 2197/2009, 9 June 2011 at §16. The court should only grant pre-action discovery as a matter of last resort.

56.  No doubt, those are all relevant considerations. Ultimately, as Lord Wilberforce explained in Science Research Council v Nasse [1980] AC 1028 at 1067E, “it is an exercise in judicial judgment”.

57.  It is not the Defendant’s case that there is some fundamental objection to pre-action discovery or that, on the facts of the present case, it cannot be applicable.

    (2) Norwich Pharmacal

58.  The general principles are well established and are not controversial. The Defendant emphasised the element of necessity, the relevant test being whether, unless discovery has been given, the trial would be rendered nugatory: Ng Ying Mo v Secretary for Justice [2021] 4 HKLRD 574 at §§31-32.

    (3) Conclusion on pre—action discovery and Norwich Pharmacal

59.  Had it been necessary to consider whether disclosure should be ordered by way of pre-action discovery or applying Norwich Pharmacal principles, I see no intrinsic objection to the grant of the relief sought under either head of relief.

(D) Confidentiality and privilege

60.  The Defendant was at pains to emphasise the solicitor-relationship between the Defendant and the Deceased and Kingsun and the fact that a solicitor has a continuing duty to preserve the confidentiality of information imparted during its subsistence. Arguably, that obligation survives the death of a person.

61.  However, confidentiality is not a reason in law to deny production of documents: see the Tullett case at §18. Nor is a litigant entitled to refuse disclosure of documents and information merely because they were supplied to him in confidence: HKCP 2024 at §24/5/46.

62.  In so far as legal advice privilege is raised as an objection to production of the Trust Documents, the relevant considerations may be summarised as follows:

(i)  a general unparticularised claim of privilege is insufficient: HKCP 2024 at§24/5/8

(ii)  documents that evidence trust deeds and/or completed transactions are not privileged: see Passmore, Privilege (4^th ed) at §2-024;

(iii)  it does not apply to non-existent documents: Passmore at §2-003;

(iv)  there can be no claim to LPP among persons who enjoy some form of common interest in the subject matter of the communication, for example, that of trustee and beneficiaries: Passmore at §6-001 to 6-006; and Angela Chen v Wai Wai Chen & Ors[2021] HKCFI 2436 at §§55-56.

(D) Conclusion

63.  For the reasons set out above, I see no reason why the relief sought should not be granted.

Order

64.  Accordingly, I make an order in terms of paragraphs 1 to 3 of the Originating Summons.

65.  I also make an order nisi of costs in favour of the Plaintiffs with certificate for counsel, such costs to be summarily assessed and payable forthwith.

66.  It is further directed that (1) the Plaintiffs do lodge their statements of costs within 14 days; (2) the Defendant do lodge its list of objections (not exceeding 2 pages) within 14 days thereafter; and (3) the Plaintiffs do lodge their respective the reply (not exceeding 2 pages if any) within 7 days thereafter.

Mr Kerby Lau, instructed by King & Wood Mallesons, for the 1^st to 3^rd Plaintiffs

Ms Queenie Lau, instructed by Clyde & Co, for the Defendant