TIONG KING SING v. SAM BOON PENG YEE AND ANOTHER

TIONG KING SING v. SAM BOON PENG YEE AND ANOTHER

At the ex parte leave stage under Order 52 rule 2 the court performs a prima facie filtering exercise and is not to decide admissibility or resolve credibility; Cheng\'s solicitor\'s affirmation was justified given the 1st Defendant\'s incapacity to attend and the solicitor\'s interviews; the Statement disclosed a reasonable cause of action on the pleaded facts; the two letters did not amount to material non-disclosure that would have prevented the court granting ex parte leave, so the ex parte leave was correctly granted and should not be set aside.

Citation
TIONG KING SING v. SAM BOON PENG YEE AND ANOTHER
Parties
Plaintiff (hca 1517/2011) / Defendant (hcmp 1404/2014): Tiong King Sing; 1st Defendant (hca 1517/2011) / 1st Plaintiff (hcmp 1404/2014): Sam Boon Peng Yee; 2nd Defendant (hca 1517/2011) / 2nd Plaintiff (hcmp 1404/2014): New Sunshine Investments Limited
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
21 January 2015
Case Number
HCA1517/2011
Procedural Posture
Civil Committal (contempt) Application Arising From Breach of Undertaking; Interlocutory Applications in Related HCA and HCMP Proceedings / Interlocutory: Application to Strike/exclude Affidavit and to Set Aside Ex Parte Leave (ex Parte Leave Granted; Substantive Committal Hearing Adjourned)
Outcome
HCA Summons dismissed; ex parte leave to issue committal proceedings upheld; HCMP Summons adjourned sine die with liberty to restore
Legal Topics
Ex Parte Leave for Committal, Duty of Full and Frank Disclosure, Admissibility of Hearsay and Solicitor Affirmations, Striking Out Affidavits, Pleading Reasonable Cause of Action
Source Language
EN
Civil Procedure Contempt of Court Civil Evidence Injunctions/mareva Undertakings Ex Parte Leave for Committal Duty of Full and Frank Disclosure Admissibility of Hearsay and Solicitor Affirmations Striking Out Affidavits +1 more

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Parties

Tiong King Sing

Plaintiff (hca 1517/2011) / Defendant (hcmp 1404/2014)

Sam Boon Peng Yee

1st Defendant (hca 1517/2011) / 1st Plaintiff (hcmp 1404/2014)

New Sunshine Investments Limited

2nd Defendant (hca 1517/2011) / 2nd Plaintiff (hcmp 1404/2014)

Procedural Posture

Civil Committal (contempt) Application Arising From Breach of Undertaking; Interlocutory Applications in Related HCA and HCMP Proceedings / Interlocutory: Application to Strike/exclude Affidavit and to Set Aside Ex Parte Leave (ex Parte Leave Granted; Substantive Committal Hearing Adjourned)

Legal Issues

  1. 1 Whether a solicitor\'s affirmation (Cheng\'s 12th Affirmation) was defective or should be expunged
  2. 2 Whether the Statement disclosed a reasonable cause of action for committal
  3. 3 Whether defendants breached the duty of full and frank disclosure when obtaining ex parte leave by failing to disclose two letters from plaintiff\'s solicitors

Ratio Decidendi

At the ex parte leave stage under Order 52 rule 2 the court performs a prima facie filtering exercise and is not to decide admissibility or resolve credibility; Cheng\'s solicitor\'s affirmation was justified given the 1st Defendant\'s incapacity to attend and the solicitor\'s interviews; the Statement disclosed a reasonable cause of action on the pleaded facts; the two letters did not amount to material non-disclosure that would have prevented the court granting ex parte leave, so the ex parte leave was correctly granted and should not be set aside.

Court Disposition

HCA Summons dismissed; ex parte leave to issue committal proceedings upheld; HCMP Summons adjourned sine die with liberty to restore

Orders

  • HCA Summons dated 30 July 2014 dismissed with costs; certificate for two counsel granted
  • HCMP Summons dated 30 July 2014 adjourned sine die with liberty to restore