SUNNI INTERNATIONAL LTD v. WIN HARVEST ENTERPRISES LTD AND ANOTHER

SUNNI INTERNATIONAL LTD v. WIN HARVEST ENTERPRISES LTD AND ANOTHER

At interlocutory pre-trial stage the court refused to strike out in bulk the liquidator's and applicant's contested witness statement passages because: (1) a liquidator is entitled to give evidence of investigative findings and to summarise documents even if the content is hearsay, (2) hearsay in civil cases is admissible subject to s47 EO and the court should not preclude such material wholesale before trial where weight is the issue, (3) the Wetherspoon principle permitting limitation of commentary on documents is not absolute and may be relaxed in complex liquidation litigation, and (4) granting a broad brush striking out would be prejudicial to the interests of justice; instead...

Citation
[2021] HKCFI 2418
Parties
Plaintiff (hca1884 & Hca2380); Company in Winding Up (hccw121): Sunni International Limited; 1st Defendant (hca1884): Kao Wai Ho Francis; 2nd Defendant (hca1884): Kao Cheung Chong also known as Michael Kao Cheung Chong; 3rd Defendant (hca1884); 1st Defendant (hca2380): Win Harvest Enterprises Limited; 4th Defendant (hca1884): Unicorn Animation Studios Limited; 5th Defendant (hca1884): Big Plan Holdings Limited; 2nd Defendant (hca2380): Famewell Limited; Applicant (hccw121, Misfeasance Summons): Tsen Yun Lei; Respondent (hccw121): Lo Kin Fung
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
26 August 2021
Case Number
HCA2380/2018
Procedural Posture
Civil Litigation (company Misappropriation, Misfeasance and Winding Up) / Interlocutory Pre Trial (hearing on Striking Out Witness Statements)
Outcome
Defendants' Summons dismissed; Alex Lo's Summons dismissed; applications to strike out witness statements refused
Legal Topics
Misappropriation of Assets, Breach of Fiduciary Duty, Misfeasance, Striking Out Evidence, Hearsay Admissibility, Liquidator's Investigations and Evidence, Accessory Liability, Statute of Limitations/time Bar, Winding Up Proceedings
Source Language
EN
Company Law Insolvency and Liquidation Civil Procedure Evidence Law Misappropriation of Assets Breach of Fiduciary Duty Misfeasance Striking Out Evidence +5 more

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Parties

Sunni International Limited

Plaintiff (hca1884 & Hca2380); Company in Winding Up (hccw121)

Kao Wai Ho Francis

1st Defendant (hca1884)

Kao Cheung Chong also known as Michael Kao Cheung Chong

2nd Defendant (hca1884)

Win Harvest Enterprises Limited

3rd Defendant (hca1884); 1st Defendant (hca2380)

Unicorn Animation Studios Limited

4th Defendant (hca1884)

Big Plan Holdings Limited

5th Defendant (hca1884)

Famewell Limited

2nd Defendant (hca2380)

Tsen Yun Lei

Applicant (hccw121, Misfeasance Summons)

Lo Kin Fung

Respondent (hccw121)

Procedural Posture

Civil Litigation (company Misappropriation, Misfeasance and Winding Up) / Interlocutory Pre Trial (hearing on Striking Out Witness Statements)

Legal Issues

  1. 1 Whether witness statements of the liquidator and applicant contain matters outside personal knowledge warranting striking out
  2. 2 Whether hearsay in witness statements should be excluded at the pre-trial stage
  3. 3 Whether commentary on documents in witness statements improperly usurps the function of the court

Ratio Decidendi

At interlocutory pre-trial stage the court refused to strike out in bulk the liquidator's and applicant's contested witness statement passages because: (1) a liquidator is entitled to give evidence of investigative findings and to summarise documents even if the content is hearsay, (2) hearsay in civil cases is admissible subject to s47 EO and the court should not preclude such material wholesale before trial where weight is the issue, (3) the Wetherspoon principle permitting limitation of commentary on documents is not absolute and may be relaxed in complex liquidation litigation, and (4) granting a broad brush striking out would be prejudicial to the interests of justice; instead...

Court Disposition

Defendants' Summons dismissed; Alex Lo's Summons dismissed; applications to strike out witness statements refused

Orders

  • Defendants' Summons dismissed
  • Costs of and occasioned by Defendants' Summons to Plaintiff, to be taxed if not agreed, payable by Defendants forthwith, certificate for two counsel