CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC.AND ANOTHER

CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC.AND ANOTHER

The defendants' application to adduce expert evidence was dismissed because the proposed expert questions principally sought to resolve factual questions about SIPO's motives and administrative history and/or to test the correctness of PRC legal advice which was not a live issue; such evidence would not assist the court and amounted to a fishing exercise contrary to Practice Direction PD5.2 and established authorities; consequently leave was refused and costs awarded to the plaintiffs.

Citation
CHOW HOW YEEN MARGARET AND OTHERS v. WEX PHARMACEUTICALS INC.AND ANOTHER
Parties
1st Plaintiff: CHOW HOW YEEN MARGARET; 2nd Plaintiff: GAO CHENG (XIE LI) COMPANY LIMITED; 3rd Plaintiff: MUSCULAR INVESTMENT COMPANY LIMITED; 1st Defendant: wex pharmaceuticals inc.; 2nd Defendant: wex medical limited; 1st Third Party: FRANK HAY KONG SHUM; 2nd Third Party: GRACE WAI LAN LEONG
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
24 February 2015
Case Number
HCA537/2013
Procedural Posture
Civil (fraud/contract/intellectual Property) / Interlocutory — Application for Leave to Adduce Expert Evidence (chambers Hearing)
Outcome
Plaintiffs' summonses dated 5 Dec 2014, 2 Feb 2015 and 10 Feb 2015 allowed (with timetable modification); Defendants' summons dated 5 Dec 2014 for leave to adduce expert evidence dismissed.
Legal Topics
Expert Evidence Admissibility, Chinese Patent Ownership and Effect of SIPO Decisions, Reliance on Foreign (prc) Legal Advice, Fishing for Evidence, Case Management/practice Direction Pd5.2
Source Language
EN
Civil Procedure Evidence Intellectual Property Commercial Fraud Costs Expert Evidence Admissibility Chinese Patent Ownership and Effect of SIPO Decisions Reliance on Foreign (prc) Legal Advice +2 more

Case Brief

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Parties

CHOW HOW YEEN MARGARET

1st Plaintiff

GAO CHENG (XIE LI) COMPANY LIMITED

2nd Plaintiff

MUSCULAR INVESTMENT COMPANY LIMITED

3rd Plaintiff

wex pharmaceuticals inc.

1st Defendant

wex medical limited

2nd Defendant

FRANK HAY KONG SHUM

1st Third Party

GRACE WAI LAN LEONG

2nd Third Party

Procedural Posture

Civil (fraud/contract/intellectual Property) / Interlocutory — Application for Leave to Adduce Expert Evidence (chambers Hearing)

Legal Issues

  1. 1 Whether the defendants' proposed expert evidence under O.38 r.36 is admissible and relevant
  2. 2 Whether an expert can opine on why SIPO changed its decision or on factual motives of administrative bodies
  3. 3 Whether expert evidence on PRC law is necessary or whether the existence of PRC legal advice is a factual matter for trial

Ratio Decidendi

The defendants' application to adduce expert evidence was dismissed because the proposed expert questions principally sought to resolve factual questions about SIPO's motives and administrative history and/or to test the correctness of PRC legal advice which was not a live issue; such evidence would not assist the court and amounted to a fishing exercise contrary to Practice Direction PD5.2 and established authorities; consequently leave was refused and costs awarded to the plaintiffs.

Court Disposition

Plaintiffs' summonses dated 5 Dec 2014, 2 Feb 2015 and 10 Feb 2015 allowed (with timetable modification); Defendants' summons dated 5 Dec 2014 for leave to adduce expert evidence dismissed.

Orders

  • Plaintiffs' summonses under paragraphs 1(a), (b) and (c) are allowed; parties to exchange expert reports within 42 days from date of decision
  • Defendants' summons under paragraph 1(d) for leave to adduce expert evidence is dismissed