ACE EARN LTD v. SIU CHI MING

bjbj KIA_ P gP ____ Before: Hon H. Au-Yeung J (Paper Disposal) Dates of Submissions: 19, 24 and 29 September 2025 Date of Decision: 28 November 2025 _______

DECISION _____

THE APPLICATION This Decision deals with the plaintiffs applications made by virtue of two in effect identical summonses filed on 11 July 2025 in HCA 1331/2023 and HCA 1333/2023 ( the 1331 Summons and the 1333 Summons ) respectively. In this Decision, I will primarily refer to the parties, facts and the documents filed in HCA 1331/2023 for the sake of convenience, as the applications in the two actions will rise and fall together. Indeed, the parties in HCA 1333/2023, when dealing with the 1333 Summons, have seen fit to rely on the affirmations filed in HCA 1331/2023 entirely. Hence, unless otherwise stated, any reference to the parties, facts and the documents filed are in relation to HCA 1331/2023. By the 1331 Summons, the plaintiff asks for, inter alia, an unless order, such that if the defendant fails to fully comply with his disclosure obligation under the Mareva injunction order dated 11 September 2023, he shall be debarred from defending the action. In gist, the plaintiff s ground of the application is that the defendant has not discharged his obligation to disclose his assets. The defendant opposes the application. He alleged that he has discharged such an obligation by virtue of his 3rd Affirmation which was served on the plaintiff s solicitors on 14 August 2025. In his 3rd Affirmation, the defendant also asks for leave to sell a car parking space owned by him for the purpose of discharging his tax liability. With greatest respect, it is entirely inappropriate for the defendant to slip in an application in his opposing affirmation in such a way. I will therefore disregard such an application .

BACKGROUND On 16 August 2023, the plaintiff obtained an injunction order on ex parte basis against the defendant. The matter was next heard on 11 September 2023 by this Court. Apart from re-granting the injunction, I had made, among others, the following orders: 7. The Defendant do inform the Plaintiff in writing on or before 25 September 2023 of all his assets of an individual value of HK$50,000 or more in Hong Kong, whether in his own name or not and whether solely or jointly owned, giving the value, location and details of all such assets. The Defendant may be entitled to refuse to provide some or all of this information on the grounds that it may incriminate him; 8. The information referred to in the preceding paragraph must be confirmed in an affidavit which must be served on the Plaintiff s solicitors on or before 9 October 2023 the Disclosure Order ) On 25 September 2023, the defendant s then solicitors wrote to the plaintiff s solicitors and stated that: Pursuant to the Order granted by Deputy High Court Judge H. Au-Yeung dated 11 September 2023, we write to inform you that our Client s assets of an individual value of HK$50,000 or more in Hong Kong are:- Flat F [ ] Car Park [ ] Bank of Communications: 382-xxx-xxxxxx-x-01 Bank of China (Hong Kong) (securities account): 012-xxx-xx-xxxxx-1 [ ] For the value of assets in the two bank accounts, we are still liaising with

the relevant banks and will update you when we ascertain the exact value of assets in the bank accounts. [ According to the defendant s 3rd Affirmation (see below), the Bank of Communications account referred to in the letter dated 25 September 2023 is a savings account. The Bank of China account is a securities account. On 2 February 2024, the defendant made his 1st Affirmation in purported compliance with the Disclosure Order. It was stated in the said affirmation that: 3. I have been advised by my legal adviser of my duty to disclosure under the Ancillary Disclosure Order. I confirm that the details of my assets of individual value of more than HK$50,000 or more in Hong Kong are as follows:- Particulars of the Assets Property Value (HKD) Flat F [ 10,690,000 Car Park [ Approx. 1,400,000 Bank of Communications: 382-xxx-xxxxxx-x-01 (To be ascertained) Bank of China (Hong Kong) (securities account): 012-xxx-xx-xxxxx-1 (To be ascertained) ] 6. For the values of both items 3.3 and 3.4 disclosed above, I am still awaiting for the confirmation of the relevant banks of the value of assets within the bank accounts.

7. I also confirm that further inquiries had been made to my other accounts in Hong Kong and no other bank accounts in Hong Kong contain assets of more than HK$50,000. The information of bank accounts referred to in the said Affirmation, which was eventually filed on 14 February 2024, was in relation to the same Bank of Communications savings account and Bank of China securities account as mentioned in the letter dated 25 September 2023. On 14 February 2025, the plaintiff obtained a non-party discovery order against HSBC, under which the bank was obliged to disclose to the plaintiff s solicitors, among other things, the account statements relating to the defendant s account No.634-xxxxxx-xxx ( the HSBC 634 Account ). According to the bank statements provided, the said account had a balance of over $56,000 as at 25 September 2023. On 11 June 2025, the plaintiff s solicitors wrote to the defendant s then solicitors and demanded the defendant to give full assets disclosure. As the defendant s solicitors did not reply, the plaintiff issued the 1331 Summons on 11 July 2025. On 14 August 2025, the defendant served his 3rd Affirmation in opposition to the 1331 Summons, in which, inter alia, he: referred to his 1st Affirmation filed on 14 February 2024, and confirmed that these [assets] comprise all [his] assets valued at over HK$50,000 as at 25 September 2023, apart from [his HSBC 634

Account] valued at HK$59,832.32 as at 27 February 2025, which has already been disclosed to the plaintiff ; stated that he has not moved any of his assets in his Bank of Communications savings account or current account (such a current account bears the same account number, except that it was ended with rather than ); disclosed the bank statements of his Bank of Communications savings account and current account for the period between 16 August 2023 and 15 February 2024, which show that: as at 25 September 2023, the Bank of Communications savings account had a balance of $129,312.59; there were 4 no book transfers of the respective sums of $26,284.49 from the Bank of Communications savings account on 18 October 2023, 16 November 2023, 18 December 2023 and 16 January 2024; since the last no book transfer on 16 January 2024, the Bank of Communications savings account had a balance of less than $50,000; as at 25 September 2023, the Bank of Communications current account had nil balance; produced the bank statement of the Bank of Communications savings account and current account dated 15 July 2025 which shows that the total balance of the said account is less than $50,000; stated that he could not have access to his Bank of China accounts (namely, savings account and securities account) via online banking, and that he had been told by a staff member of the Bank of China, Mr Jacky Yuen, on 1 August that he has $53,377.93 in his Bank of China savings account; alleged that the said Mr Yuen could not provide any information on the balance in his securities account.

DISCUSSION The plaintiff s grounds in support of this application are that: The defendant s disclosures are inadequate; There was no excuse for the defendant s non-compliance with the Disclosure Order; The defendant had adopted a lacklustre attitude towards his disclosure obligation. On the other hand, the defendant s grounds of opposition are that: While he has omitted to disclose the HSBC 634 Account in his 1st Affirmation, he has already rectified that by admitting the existence of that account; He has made honest attempts to disclose the relevant assets; He has fully complied with the Disclosure Order. In my view, this Court has to decide the following questions when dealing with the plaintiff s application: whether there has been full compliance with the Disclosure Order as of today; if not, what further order(s) should the Court make, in particular, whether the Court should make an unless order against the defendant; if an unless order is to be made, what should be the sanction of the unless order. Whether there has been full compliance The question of whether there has been full compliance with the Disclosure Order is a straight forward one. The answer must be . This is because: the defendant has admittedly not disclosed the balance of his Bank of China securities account; while the defendant has disclosed that his Bank of China savings account has a balance of

$53,377.93, there is still non-disclosure of the balance of this account as at 25 September 2023. Orders to be made The defendant stated that he had asked, by a telephone conversation with a Mr Yuen of the Bank of China, for the respective balance of his Bank of China securities account and savings account. However, the said Mr Yuen replied that he could not provide him with the information of his securities account. There is no explanation as to why, for example, the defendant could not make a formal request in writing for the balance of his accounts with the Bank of China. Neither is there any explanation as to why he had to wait for nearly 2 years (assuming his call to Mr Yuen was made on 1 August 2025 ) for him to make enquiries on his bank accounts, which he should have done so back in September 2023. The plaintiff asked for an unless order against the defendant, who argued that such a drastic and draconian order is not necessary, since the defendant s non-compliance was neither contumelious nor contumacious, and that it was just an inadvertent omission which has been adequately rectified by his 3rd Affirmation. With greatest respect, I disagree with the defendant. I am of the view that an unless order must be suitable in the present case because: The defendant was apparently adopting a couldn t-care-less attitude since the beginning, as he must be aware of his duty to

ascertain and disclose the balance of his Bank of Communications savings account and Bank of China securities account back on 25 September 2023 when he instructed his solicitors to disclose his assets, yet he did not disclose such balance of his Bank of Communications savings account until 14 August 2025 when he served his 3rd Affirmation on the plaintiff (in other words, after the current application has been made by the plaintiff), and he has not disclose the balance of the said securities account even up till now; The defendant has kept silent as to why he did not demand the relevant banks to disclose the balance of his accounts earlier or at all, as the case may be, and the explanations given by his 3rd Affirmation (for example, he had no online access to his account) are totally unacceptable. It can be inferred that unless a draconian order is made, he is not going to be cooperative; There has not been full compliance for more than 2 years since the making of the Disclosure Order. The next question is what is the appropriate sanction of the unless order. The plaintiff relied on China Evergrande Group (In Liquidation) v. Hui Ka Yan & Others [2025] HKCFI 898, China Metal Recycling (Holdings) Limited & Another v. Chun Chi Wai & Others (HCA 1412/2013, unreported, 7 April 2014 and 17 November 2014) and submitted that the appropriate sanction in the event of non-compliance of the unless order must be striking out the defendant s Defence in the present case. I agree. In the circumstances of the present case, it is just, proportionate and also appropriate to impose such a sanction. It is also just to make an order that the defendant should give full particulars in the event he has disposed of, encumbered or otherwise dealt with his assets since 25 September 2023.

ORDER I therefore order in both HCA 1331/2023 and HCA 1333/2023 that: The defendant do by 4pm on 12 December 2025 file and serve a further affirmation ( the Further Affirmation ): giving the value, location and details of all of his assets (whether in his own name or not and whether solely or jointly owned) of an individual value of HK$50,000 or more in Hong Kong as at 25 September 2023; and giving the particulars (including the current whereabouts of the relevant asset(s)) as to the circumstances of the dealings and the whereabouts of such assets if any asset which is discloseable under the preceding paragraph has been disposed of, encumbered or otherwise dealt with between 25 September 2023 and the date of the Further Affirmation, (collectively, the Disclosure Obligation ) Unless the defendant complies with the Disclosure Obligation by 4pm on 12 December 2025, his Defence filed herein shall be struck out and the plaintiff shall be at liberty to enter judgment against the defendant.

COSTS I make a costs order nisi that the defendant shall bear the costs of the Summonses. The plaintiffs costs of the Summonses shall be summarily assessed in lieu of taxation. Unless any application for variation of the aforesaid costs order nisi is made within time, the plaintiffs shall lodge and serve their statement of costs within 7 days after the expiry of the said 14-day period referred to in the paragraph below. The defendant shall lodge and serve his statement of objection within 7 days thereafter. Summary assessment of the costs of the Summonses will be conducted on paper (no matter whether any statement of objection is lodged by the defendant within time) thereafter. The costs assessed shall be paid by the defendant within 14 days after assessment. The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof. ( H. Au-Yeung ) Judge of the Court of First Instance High Court Mr Martin Lau, instructed by Li & Partners, for the plaintiffs in both actions Mr Au Lut Chi and Ms Lam Wan So Cheryl, instructed by T. H. Chan & Co, for the defendant All bank account numbers mentioned in this Decision are partly concealed It was filed on 18 August 2025 This date was gathered from a call log produced by the defendant. However, the call log does not show which year the calls were made See Footnote 3

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