Hong Kong Case Law: Decisions & Judgments

Topic

Implied undertaking on discovery

Legal area

Court

4 Mar 2021

FONG KWOK SHAN, CHRISTINE 方國珊 V. SECRETARY FOR JUSTICE (SUED ON BEHALF FONG KWOK SHAN, CHRISTINE v. SECRETARY FOR JUSTICE (SUED ON BEHALF OF THE DIRECTOR OF LANDS)

Citation

[2021] HKCFI 1009
Court

Court of First Instance
Case number

HCA265/2012

The court granted release from the implied undertaking because the Director demonstrated cogent and persuasive reasons: the documents are necessary for investigation of false statutory declarations, for the Director to determine whether and how to enforce or revoke licences and permissions that are voidable, and for referral to law enforcement; the public interest in disclosure outweighs any injustice to parties who disclosed documents, and the defendants offered no sufficient prejudice or privilege to refuse release.
19 Dec 2016

CWG v. MH AND OTHERS

Citation

CWG v. MH AND OTHERS
Court

Court of First Instance
Case number

HCMP643/2012

The court found there was prima facie evidence raising serious suspicion that the Offshore Minutes were not signed by R2 on the dates stated and that the provenance of the documents was evasive; balancing the public interest in investigating suspected perjury/serious fraud against confidentiality, the court exercised its discretion under Order 24 r 14A to relax the implied undertaking limitedly to allow the Applicant to provide the Schedule 1 Documents and Browne’s Report to the Hong Kong Police for consideration and possible investigation; R2 was permitted to be heard despite Hadkinson order…
8 May 2015

LI MINGREN v. QUESTEX DEVELOPMENT INC. AND ANOTHER

Citation

LI MINGREN v. QUESTEX DEVELOPMENT INC. AND ANOTHER
Court

Court of Appeal
Case number

CACV141/2014

The court admitted the fresh evidence obtained from PRC proceedings because (1) the implied undertaking against use of disclosed documents ceased once the PRC court referred to those bank records in its open-court judgment (Ord 24 r.14A), and (2) Ladd v Marshall's first condition was satisfied because the documents could not have been obtained with reasonable diligence before the summary judgment hearing; the fresh evidence raised a triable issue capable of undermining the summary judgment, so leave to adduce it on appeal was granted; consequently the court declined to order security for cost…
6 Nov 2014

SECRETARY FOR JUSTICE v. FLORENCE TSANG CHIU WING AND OTHERS

Citation

SECRETARY FOR JUSTICE v. FLORENCE TSANG CHIU WING AND OTHERS
Court

Court of Final Appeal
Case number

FACV6/2014

The Court held that W could not be released from her implied undertaking so as to permit disclosure to the DPP of documents in respect of which H and STL had asserted legal professional privilege and which had not been judicially determined as not privileged; the DPP must establish entitlement under the Cox and Railton exception in the pending remitter. The Court set aside the orders releasing W generally and limited any release to documents not subject to LPP claims filed by H and STL. Release that would enable the DPP to obtain documents denied to him by the court is impermissible and would…
6 Nov 2014

SECRETARY FOR JUSTICE v. FLORENCE TSANG CHIU WING AND OTHERS

Citation

SECRETARY FOR JUSTICE v. FLORENCE TSANG CHIU WING AND OTHERS
Court

Court of Final Appeal
Case number

FACV5/2014

The court held that W must not be released from her implied undertaking to permit disclosure to the DPP of documents in respect of which H and STL claim legal professional privilege until the DPP's entitlement to those documents has been judicially determined; releasing W would permit circumvention of privilege determinations, undermine the administration of justice and allow privileged material to be obtained indirectly contrary to the absolute protection afforded by LPP; W may be released only in respect of documents not subject to LPP claims.
9 Jan 2014

PIONEER IRON AND STEEL GROUP CO LTD (in provisional liquidation) v. PIONEER METALS CO LTD AND OTHERS

Citation

PIONEER IRON AND STEEL GROUP CO LTD (in provisional liquidation) v. PIONEER METALS CO LTD AND OTHERS
Court

Court of First Instance
Case number

HCMP2643/2013

Leave to appeal was refused because the applicant lacked a reasonable prospect of success: the judge acted within the generous ambit of discretion in releasing the plaintiff from the implied undertaking after balancing the provisional liquidators’ legitimate need to reconstruct the company’s affairs and recover assets against the examinee’s protection from oppressive inquiry, and there was no other reason in the interests of justice to hear the appeal; costs awarded to respondent.
15 Jul 2013

PIONEER IRON AND STEEL GROUP CO LTD (in provisional liquidation) v. PIONEER METALS CO LTD AND OTHERS

Citation

PIONEER IRON AND STEEL GROUP CO LTD (in provisional liquidation) v. PIONEER METALS CO LTD AND OTHERS
Court

Court of First Instance
Case number

HCMP1974/2011

Balancing the legitimate requirements of the liquidators to obtain speedy and necessary information from the person who ran the company (and who was its director and sole shareholder) against the risk of oppression, the Court concluded the scales favour permitting use of the discovered documents for the section 221 examination subject to judicial control; accordingly the implied undertaking is released and the application is allowed as sought.
8 Mar 2013

YANG FOO-OI v. WAI WAI CHEN AND ANOTHER

Citation

YANG FOO-OI v. WAI WAI CHEN AND ANOTHER
Court

Court of First Instance
Case number

HCA1739/2010

The court found on the facts that the Subject Document fell within Schedule A / the Letter of Request and was relevant evidence of the Family Arrangements such that special circumstances existed to release the implied undertaking to permit Angela, a third party, to use the Subject Document in the California Action; however the court refused leave to use the document in intended contempt proceedings. The release would not occasion injustice to the disclosing party. Costs were apportioned accordingly.
9 Jun 2011

LIU HING SANG v. MIRAMAR TRAVEL LTD

Citation

LIU HING SANG v. MIRAMAR TRAVEL LTD
Court

District Court
Case number

DCEC486/2010

The Court exercised its discretion to relax the implied undertaking and grant leave limited to the use of the specific affirmation of Madam Yau because the document addressed a common issue (pre-accident earnings), its use would save costs and time, there was no prejudice to the respondent (conceded by counsel), and the relief sought was narrowly tailored.
30 Sept 2009

RE NDT (BVI) TRADING LTD

Citation

RE NDT (BVI) TRADING LTD
Court

Court of First Instance
Case number

HCCW49/2008

The court exercised its discretion under Order 24 rule 14A and granted leave to relax the implied undertaking because the disclosed documents were material and relevant to the Guarantee Action, there was a close factual connection between proceedings, prima facie contradictions in witnesses statements suggested possible perjury, the Company was neutral and unlikely to suffer prejudice, and the public interest in allowing investigation of alleged perjury and professional misconduct outweighed confidentiality concerns.