A A

HCA 2072/2018, HCA 2560/2018 and HCA 2632/2018

[2021] HKCFI 870
B B

IN THE HIGH COURT OF THE

C C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D COURT OF FIRST INSTANCE D
ACTION NO 2072 OF 2018, 2560 OF 2018 AND 2632 OF 2018
E E

F
BETWEEN F

GIANT HARVEST LIMITED (鉅滿有限公司) Plaintiff

G G
and
H H
NAN HAI CORPORATION LIMITED (南海控股有限公司) 1st Defendant

I TRUE VISION LIMITED (美視角有限公司) 2nd Defendant I

(by original action)

J J

K K
AND BETWEEN
L TRUE VISION LIMITED (美視角有限公司) Plaintiff L

M
and M

GIANT HARVEST LIMITED (鉅滿有限公司) 1st Defendant

N N
nd 
ORANGE SKY GOLDEN HARVEST 2 Defendant
O ENTERTAINMENT (HOLDINGS) LIMITED O
(橙天嘉禾娛樂(集團)有限公司)
P P
(by counterclaim)

Q Q
(consolidated by the Order of Master Ho dated 5 December 2018)
R R
Before: Deputy High Court Judge MK Liu in Chambers
S Date of Hearing: 29 March 2021 S

Date of Decision: 29 March 2021

T T
Date of Reasons for Decision: 31 March 2021
U U

V V
A A

B
REASONS FOR DECISION B

C C

1. The dispute in these proceedings is between two group of

D D
companies concerning the sale and purchase of some cinema business in
E Mainland China. For ease of reference, I would call Giant Harvest E

Limited (“Giant Harvest”) and Orange Sky Golden Harvest

F F
Entertainment (Holdings) Limited as the OSGH Parties, and True Vision
G G
Limited (“True Vision”) and Nan Hai Corporation Limited as the NH

H
Parties. H

I 2. By an Amended Summons filed on 4 September 2020 (“the I

J
Amended Summons”), the NH Parties sought leave to adduce J
expert evidence on:
K K
(1) Mainland Chinese tax law;
L (2) valuation of cinema box office revenue; and L

M (3) Mainland Chinese fire and safety regulations, M

in the context of the dispute between the parties.

N N

3. The Amended Summons was heard and dismissed by Master

O O
‍Winnie Tsui on 28 August 2020. On 11 September 2020, the NH ‍Parties
P lodged an appeal against the master’s decision. Subsequently, the NH P

Q
Parties issued 2 summonses on 22 February 2021 and 8 March 2021 Q
respectively for leave to adduce new evidence in the appeal (“the 2 ‍New
R R
Evidence Summonses”).

S S
4. On 29 March 2021, after hearing submissions from the
T T
parties, I dismissed the appeal and the 2 New Evidence Summonses. I

U U

V V
A A
also awarded costs to the OSGH Parties, with a certificate for 2 counsel.

B
These are my reasons for the decision. B

C The principles C

D 5. An appeal hearing under Order 58 is a de ‍novo hearing. D

Subject to the restriction in Order 58 rule 1(5), the hearing before me is

E E
an actual rehearing as if the application came before me for the first
F time1. F

G G
6. As prescribed in Order 58 rule 1(5), no new evidence may be
H received in the hearing of an appeal except on special grounds. It H

is not in dispute that for new evidence to be received in the hearing

I I
of an appeal under Order 58, the conditions laid down in Ladd v
J Marshall2 have to be satisfied, namely whether the evidence: J

K (1) could not have been obtained at the hearing below with K
reasonable diligence;
L L
(2) would have a very important effect on the mind of the court;
M and M

(3) is of a sort which inherently is not improbable.

N N

O 7. As to the admission of expert evidence, the principles have been O

set out by the Court of Appeal in Shenzhen Futaihong Precision

P P
Industry Co Ltd v BYD Company Limited & Others3:
Q (1) The subject matter of the opinion must fall within an area in Q

which expert evidence may properly be given. This calls for

R R
consideration of (a) whether the subject matter is such that a
S person without experience in that area of knowledge would S

1
Hong Kong Civil Procedure 2021, Volume 1, §58/1/2
T 2 T
[1954] 1 WLR 1489
3
[2019] 2 HKC 175, [4]-[6], [9], [12], [40]
U U

V V
A A
not be able to form a sound judgment on the matter without
B the assistance of expert evidence; and (b) whether the B
subject matter of the opinion forms part of a body of
C knowledge or experience which is sufficiently organized or C

recognized.
D D
(2) The witness must be qualified as an expert to give the
E E
evidence of the type in question.

F (3) The witness’ evidence must be relevant and necessary to the F

issues being litigated, in the sense that the evidence must be
G G
helpful to the court in resolving any issue in the case justly.
Evidence will not be helpful where the issue to be decided is
H H
one on which the court is able to come to a fully informed
I decision without hearing such evidence. I

J
(4) The expert evidence must be both relevant and necessary. J

K 8. In assessing whether leave should be given for introducing K

expert evidence on a particular issue, it has to be borne in mind that the

L L
admission of expert evidence should be really necessary for the resolution
M of the dispute between the parties. Adducing irrelevant and unnecessary M

expert evidence would lead to wastage on time and costs. As said by

N N
Lam ‍J (as he then was) in Chok Yick Interior Design & Engineering Co
O Ltd v Lau Chi Lun4: O

P “7. I wish to stress that application for expert directions is P

not a mere formality. It is an integral part of the case
Q management process. As a trial judge, I have seen far too many Q
cases where the lack of proper preparation of expert evidence
resulted in unnecessary costs and time spent on evidence which
R is of no help to the resolution of the dispute. And such wasteful R
exercise cost the parties a great deal of money, not only in
terms of the fees paid to the experts, but also legal costs spent
S S
on paying for the lawyers’ reading, understanding of the
reports, discussing the matter with the experts and then the time
T T
4
HCA 1480/2008, 5 May 2010
U U

V V
A (and costs) of the lawyers explaining and exploring the expert A
evidence with the judge by way of submissions and the
B examination and cross-examination of the experts during trial. B
Very often, it is not only the party responsible for the
mismanagement of expert evidence who has to pay such costs,
C similar costs have to be incurred (at least on an upfront basis) C
by his opponent.
D D
8. Such wastage is not consistent with the underlying
objectives set out in Order 1A Rule 1. ……”
E E

Mainland Chinese tax law

F F
9. Pursuant to a sale and purchase agreement dated 25 January
G G
2017 (“the SPA”), Giant Harvest agreed to sell to True Vision all the
H issued shares in City Entertainment Corporation Ltd, which held H

substantially all the shares in Orange Sky Golden Harvest Cinemas

I I
(China) Company Ltd (“Orange China”), which in turn operated
J 76 cinemas in Mainland China through its subsidiaries. J

K K
10.One of the claims made by Giant Harvest against True Vision is for
L RMB3.01 million (“the Settlement Sum”) pursuant to Clause (8) of L

a confirmation letter dated 28 July 2017 signed by the OSGH

M M
Parties and the NH Parties (“the Confirmation Letter”). In essence:
N (1) Orange China through its subsidiary operated the Shenzhen N

Yabao Cinema (“Shenzhen Yabao”), and was in a pre-

O O
existing litigation before the Mainland court with the
P landlord (“Yabao Litigation”). P

(2) Clause ‍8 of the Confirmation Letter provides that Giant

Q Q
Harvest would bear all costs (“成本”) and be entitled to all
R benefits, compensation and damages arising out of the Yabao R

Litigation.
S S
(3) The Settlement Sum is comprised of (a) damages payable by
T the landlord to Orange China of RMB3.5 million (“Yabao T

U U

V V
A A
Damages”) and (b) a refund of the deposit previously paid
B by Orange China of RMB0.5 million, less (c) legal fees B
payable to Orange China’s Mainland lawyers.
C C
(4) Giant Harvest claims it is entitled to the whole of the
D Settlement Sum, since “成本” in the form of legal fees has D
already been accounted for.
E E
(5) True Vision contends that “ 成 本 ” would include any
F additional cost that Orange China would have to shoulder F
arising from the Settlement Sum, which includes Mainland
G G
Chinese corporate tax liability of RMB875,000 in relation to
Orange China’s receipt of the Yabao Damages (“Yabao
H H
Tax”), and which liability, even if not immediately payable,
I would remain with Orange China for 5 years after the year of I

receipt (ie after the financial year ending 2018) under

J J
applicable Mainland Chinese corporate tax law.
K Accordingly, True Vision says that the time for release of the K
Settlement Sum has not yet arrived and Giant Harvest’s
L claim is premature. L

M M
11. Against the aforesaid background, the NH parties contend
N that it would be necessary to have expert evidence on the Mainland N

Chinese tax law in these proceedings.

O O

P 12. There is no dispute that Mainland Chinese tax law is a P

subject matter which forms a sufficiently organised body of knowledge

Q Q
for an expert opinion to be given.
R R

13. The NH Parties proposed to call Mr Ron Ma (“Mr Ma”), a

S S
Mainland Chinese lawyer specialises in Mainland Chinese taxation law,
T to be their expert. T

U U

V V
A A
14. Ms Eva Sit SC (leading Ms Esther Mak) for the NH Parties

B
submits that in Clause 8 of the Confirmation Letter, the meaning of “成 B

本 ” covers all liabilities that Orange China would have to shoulder

C C
relating to the Settlement Sum. Accordingly, the factual question of
D whether Orange China was still liable for the Yabao Tax at the time of the D

writ is an issue to be resolved in these proceedings, and the answer to this

E E
question turns on Mainland Chinese tax law.
F F

15.In my view, even if the true meaning of “成本” in Clause 8 of the

G G
Confirmation Letter is the one contended by the NH Parties, there
H is no reason to introduce expert evidence on the Mainland Chinese H

tax law in these proceedings.

I I
(1) As submitted by Mr Bernard Man SC (leading Mr Anthony
J Chan) for the OSGH Parties, it is clear that Shenzhen Yabao J

is not part of the sale and purchase under the SPA.

K K
(a) Preamble C(b) of the SPA expressly excludes the
L dispute concerning Shenzhen Yabao from the sale and L

purchase, meaning Giant Harvest has not sold its

M M
interest or liability in the dispute.
N (b) Clause 8 of the Confirmation Letter reconfirms that N

Shenzhen Yabao is not part of the sale and purchase

O O
under the SPA. It also expressly stipulates that any
P income and compensation from the Shenzhen Yabao P

dispute would be enjoyed by Giant Harvest, who

Q Q
would also bear the liability arising from the dispute.
R (2) Pursuant to Clause 8 of the Confirmation Letter, Giant R

Harvest should be entitled to have the Settlement Sum. The

S S
NH Parties argue that Orange China (which they now own
T and control after the SPA) may have to pay tax on the T

U U

V V
A A
Settlement Sum, and hence they are entitled to withhold the
B Settlement Sum. I agree with Mr Man that this is an B
unarguable defence. The suggestion that the NH Parties are
C entitled to keep the Settlement Sum pending the outcome of C

whether Orange China needs to pay any tax is absurd as the

D D
NH Parties would effectively get a 5-year interest free loan
E at the expense of the OSGH Parties when both sides have E

expressly agreed (as per clause 8 of the Confirmation Letter)

F F
that it is Giant Harvest who would get the benefit of the
G
Settlement Sum. Further, there is also no reason why the G
NH Parties are entitled to keep the entire Settlement Sum
H (ie RMB3.01 million) when the potential tax liability is, H

according to the NH Parties’ case, only RMB875,000.

I I

J 16. As a matter of fact, about half of the 5-year period as J

pleaded in the NH Parties’ case has elapsed. Orange China has not paid
K K
any tax as a result of the receipt of the Settlement Sum in 2018. The
L Mainland tax authority has also not required Orange China to pay any tax L

in relation to the Settlement Sum. In my view, it would not be desirable

M M
to complicate these proceedings by introducing expert evidence to cover a
N contingency (ie Orange China is required to pay a tax in relation to the N

Settlement Sum) which may not occur.

O O

P 17. In the event that Orange China is required to pay any tax as a P

result of the receipt of the Settlement Sum at a point of time in future, the
Q Q
NH Parties may request Giant Harvest to reimburse them pursuant to
R Clause 8 of the Confirmation Letter when Orange China’s liability to pay R

the tax arises. If Giant Harvest refuses to accede to that request, the
S S
parties may resolve the difference between them through another set of
T proceedings. However, in that litigation, it would not be necessary to T

U U

V V
A A
have any expert evidence on the Mainland Chinese tax law, for Orange

B
China’s liability to pay the Mainland tax would be an actuality in that B
scenario. At that time, the crux of the matter would only be the true
C C
meaning of Clause 8 of the Confirmation Letter.

D D
18. For all these reasons, I am of the view that there should not
E E
be introduction of expert evidence on the Mainland tax law as suggested

F
by the NH Parties here and now. F

G Valuation of cinema box office revenue and Mainland Chinese fire and G

safety regulations
H H
19. True Vision has two counterclaims against the OSGH
I I
Parties. For the present purposes, only the following counterclaim is
J relevant. J

K K
20.True Vision counterclaims for contractual compensation of

L RMB380 million pursuant to Schedule 6 to the SPA. True Vision’s L

case is as follows:
M M
(1) One of the most valuable cinemas operated by the Orange
N China group was 万 象 城 影 城 in Shenzhen (“MIXC N

Cinema”), with a commercial value of no less than

O O
RMB380 million and made up approximately 10% of the
P
total annual box office of OSGH’s Mainland China cinema P
businesses.
Q Q
(2) The lease of MIXC Cinema (“the MIXC Lease”) was due to
R expire on 27 September 2018 (“the Expiry Date”), after the R
anticipated execution and completion of the SPA.
S S

T T

U U

V V
A A
(3) True Vision says that given the commercial importance of
B the MIXC Cinema, the parties negotiated and agreed on a B
mechanism, whereby:
C C
(a) Giant Harvest had an obligation to procure an
D extension of the MIXC Lease; failing which D

(b) Giant Harvest would be liable to compensate True

E E
Vision for the resultant diminution in value of Orange
F China, which liability could be F

(i) discharged in kind, by Giant Harvest procuring

G G
new leases for substitute cinemas (primarily
H from a list of 5 listed in Schedule 5 to the SPA, H

“Schedule 5 Cinemas”) which value would be

I I
commensurate with the value of the MIXC

J
Cinema; or J

(ii) discharged in cash.

K K
(4) Scenario (3)(a) above is provided for in Clause 8.2 of the
L SPA. L

(5) Scenario (3)(b)(i) above is provided for in Clause 8.3 to 8.5

M M
of the SPA and Schedule 5 thereto, namely:
N N
(a) Giant Harvest could choose to procure leases for some

O
or all of the Schedule 5 Cinemas (which Orange China O
hitherto did not have leases) to be entered into, as long
P as the combined annual box office and/or commercial P

value of the same exceed that of the MIXC Cinema.

Q Q
(b) Further, for any of such new lease to be entered into
R (“Substitute Cinema Contract”), they must be either R

on prescribed terms, or the terms had to be agreed to

S S
by True Vision.
T T

U U

V V
A A
(c) Still further, if the combined commercial value of the
B Schedule 5 Cinemas secured by Giant Harvest in the B
aforesaid manner is less than that of the MIXC
C Cinema, Giant Harvest would have to pay C

compensation to True Vision, in the amount of the

D D
difference between the two.
E E
(6) Scenario (3)(b)(ii) above is provided for in §§2.3-2.4 in
Schedule 6 to the SPA, which stipulate:
F F
(a) payment by Giant Harvest to True Vision of the
G G
Compensation Amount (RMB380 million, where no
Substitute Cinema Contract is entered into);
H H

(b) payment by Giant Harvest to True Vision of

I I
compensation in the sum of the difference (where the

J
commercial value of the Schedule 5 Cinemas secured J
is less than that of the MIXC Cinema); or
K K
(c) payment by True Vision to Giant Harvest of incentive
L
payment (where the commercial value of the L
Schedule 5 Cinemas secured exceed that of the
M MIXC Cinema), based on a percentage to such M

difference in value.
N N

O 21.True Vision contends that that having regard to the aforesaid O

context, the SPA, properly construed, contained the terms that the
P P
Schedule 5 Cinemas secured could only be treated as compensation
Q in kind such that their stipulated commercial value could be Q

brought into account and deducted from the Compensation Amount

R R
if the Schedule 5 Cinemas in question are:
S (1) objectively capable of achieving the stipulated annual box S

office revenue for the same specified in Schedule 5; and

T T

U U

V V
A A
(2) objectively capable of meeting all applicable Mainland
B Chinese laws and regulations for the purpose of operating as B
a cinema.
C C

22. Giant Harvest has procured Substitute Cinema Contracts to

D D
be entered into with respect to 3 of the 5 Schedule 5 Cinemas, ie Beijing
E Great Wall Cinema, Shanghai Xinhui Cinema and Shenzhen Xinhui E

Cinema.
F F

G 23. True Vision says that none of these contracts satisfied the G

contractual requirements to qualify as Substitute Cinema Contracts.

H H
However, for the present purposes, only the matters concerning Shanghai
I Xinhui Cinema and Shenzhen Xinhui Cinema would be relevant. I

J J
24.True Vision argues that:
K K
(1) For the Shanghai Xinghui Cinema, its substandard structural

L
specifications and location rendered it objectively incapable L
of attaining the stipulated box office revenue.
M M
(2) For the Shenzhen Xinghui Cinema:
N (a) its (substandard) structural specifications and location N

rendered it objectively incapable of attaining the

O O
stipulated box office revenue; and
P (b) it did not and was not objectively capable of meeting P

all applicable Mainland Chinese laws and regulations

Q Q
for the purpose of operating as a cinema, including
R Mainland Chinese fire and safety regulations, since its R
structural configuration rendered it incapable of
S S
complying with the Mainland Chinese Code for Fire
Protection of Buildings.
T T

U U

V V
A A
25. True Vision’s case is that it was not aware of the aforesaid

B
problems when it entered into the SPA. B

C 26. With respect, notwithstanding the eloquent submissions of C

Ms ‍Sit, I am not persuaded that the NH Parties have made out a case
D D
justifying the introduction of the expert evidence as proposed by them.
E E

27. As submitted by Mr Man, on 28 July 2017, more than

F F
6 months after the execution of the SPA, the OSGH Parties and the
G Nanhai Parties signed the Confirmation Letter. Clause 15 of the G

H
Confirmation Letter provides that the parties agreed that if the signed H
leases of Shanghai Xinghui Cinema and Shenzhen Xinghui Cinema
I I
complied with the terms set out in Schedule 4 thereto, the cinemas would

J
be treated as successful Substitute Cinemas for the purpose of clauses 8.3 J
and 8.5 of the SPA. The question would therefore simply be whether the
K K
signed leases of the 2 ‍cinemas complied with the terms stated in Schedule

L 4 to the Confirmation Letter. The court therefore has no need to decide L

whether Shanghai Xinghui Cinema and Shenzhen Xinghui Cinema

M M
should be regarded as a successful Substitute Cinema on a proper
N construction of the SPA or by implication, for the OSGH Parties and the N

Nanhai Parties have already separately agreed that they would deem or
O O
treat the 2 cinemas as successful Substitute Cinemas if their leases
P complied with the terms in Schedule 4 to the Confirmation Letter. P

Q Q
28.As per Schedule 5 to the SPA and Schedule 4 to the Confirmation
R Letter, the commercial value (商業價值) of each Substitute Cinema R

should be the agreed annual box office revenue (約定年票房) x ‍4.75.

S S
The term “ 約 定 年 票 房 ” is not defined in the SPA and in the
T Confirmation Letter. As to the true meaning of the term “約定年 T

U U

V V
A A
票 房 ” in the context of the SPA and the Confirmation Letter,

B
counsel have different views. B

(1) Mr Man submits that in respect of each Substitute Cinema in

C C
Schedule 5 to the SPA and in Schedule 4 to the Confirmation
D Letter, “約定年票房”is the figure of the annual box office D
revenue of that cinema as agreed by the parties. Thus, it
E would not be necessary to have any mechanism to verify the E

“約定年票房” of any cinema in the said schedules, for the

F F
“約定年票房” of a particular cinema is a figure assigned
G to that cinema by the agreement of the parties. G

(2) Ms Sit submits that “約定年票房” of a particular cinema

H H
is the annual box office revenue which the cinema would be
I objectively capable to achieve in a particular year. The I

OSGH Parties have to show that a particular substitute

J J
cinema can objectively achieve the relevant “約定年票房”,
K and only then the substitute cinema can be treated as an K
acceptable substitute.
L L

29. Since I am dealing with interlocutory matters, I refrain from

M M
expressing a final view on the true meaning of the term “約定年票房”
N in the context of the SPA and the Confirmation Letter. I would only say N

that there is force in Mr Man’s submissions. A problem in Ms Sit’s

O O
submissions is that if Ms Sit’s construction is correct, “ 約 定 年 票 房 ”
P P
must be referring to a specific year. However, which year should be the

Q specific year is unknown or unclear. Q

R R
30. For the sake of discussion, even if Giant Harvest has to show

S
that the Shanghai Xinghui Cinema and the Shenzhen Xinghui Cinema S
meet the “約定年票房”, I am of the view that the issue should not be
T T
resolved by the expert evidence proposed by the NH Parties.
U U

V V
A A
31. It is not in dispute that the Shanghai Xinghui Cinema has

B
been in operation at all times. As to whether Shanghai Xinghui Cinema B
has achieved the agreed annual box office revenue ( 約 定 年 票 房 ) in a
C C
particular year, this is a question of fact which can be answered by
D reference to simple arithmetic and evidence readily available. A person D

without expert assistance could tell that based on the agreed annual box
E E
office revenue ( 約 定 年 票 房 ), what should be the required daily box
F office revenue. By counting the number of the tickets sold and with F

prices of the tickets in hands, it would be easy to calculate the daily box
G G
office revenue and the annual box office revenue. The task is a simple
H one. H

I I
32. I have been told that the Shenzhen Xinghui Cinema has not
J been in operation for some time. In order to estimate the annual box J

office revenue of the Shenzhen Xinghui Cinema, I am of the view that

K K
one would need to have the annual box office revenues of some other
L similar cinemas as comparables. Based upon these comparables, some L

adjustments would be made in order to arrive at an estimated annual box

M M
office revenue of the Shenzhen Xinghui Cinema. I appreciate that expert
N evidence would be necessary in this exercise. However, the expert N

evidence now proposed by the NH Parties is not of this kind.

O O

P 33. The NH parties proposed to have Mr Lau Chun Kong (“Mr P

‍Lau”) as their expert to give expert evidence on cinema box office

Q Q
revenue. Mr Lau is a professional surveyor and a managing director at
R Colliers International, with more than 30 years of property experience in R

valuation, real estate consultancy and investment sales market in Hong

S S
‍Kong, Mainland China and Asia. With respect, I really do not see why it
T would be necessary to conduct any property valuation in this case. T

U U

V V
A A
34. Ms Sit submits that the market rental values of the Shanghai

B
Xinghui Cinema and the Shenzhen Xinghui Cinema can be found out B
through the investigations to be conducted by Mr Lau, and the market
C C
rental values would reflect the annual box office revenues. With respect,

D
I am unable to agree. In my view, the rentals being paid by a cinema and D
the box office revenue of that cinema are two different matters. A cinema
E E
paying expensive rentals may not be able to have a satisfactory box office
F revenue, if its management is unsatisfactory. On the contrary, a cinema F

not in a prime location and paying modest rentals may have very good
G G
business due to its successful management. The rentals being paid by a
H cinema does not necessarily reflect its box office revenue. H

I I
35. If there is any necessity to find out the “約定年票房” of
J the Shanghai Xinghui Cinema and Shenzhen Xinghui Cinema, the J

matters should be approached in the way as set out in [31] and [32]
K K
above. Further, both the Shanghai Xinghui Cinema and Shenzhen
L Xinghui Cinema are listed as agreed substitute cinemas in Schedule 5 to L

the SPA and Schedule 4 to the Confirmation Letter. In my judgment, it

M M
would not be necessary to investigate whether the Shenzhen Xinghui
N Cinema has complied with the Mainland Chinese fire and safety N

regulations for the purpose of these proceedings in any event.

O O

P The 2 New Evidence Summonses P

Q 36.By the 2 New Evidence Summonses, the NH Parties proposed to Q

introduce the 2nd and the 3rd affirmations of Tang Ying Kit (“Mr
R R
Tang”) in the hearing of the appeal.
S (1) The 2nd affirmation of Mr Tang gives further details of Mr S

‍Lau’s credentials and exhibits his supporting statement.

T T

U U

V V
A A
(2) The 3rd affirmation of Mr Tang proposes to have a new
B expert to give evidence on Mainland Chinese fire and safety B
regulations, since the original expert became unavailable due
C to some development after the hearing before the master on C

28 August 2020.
D D

E 37. For the reasons set out in the above, none of the matters E

deposed in these affirmations would have a material impact on the

F F
outcome of the NH Parties’ application as per the Amended Summons.
G Further, in relation to the 2nd affirmation of Mr Tang, I am not satisfied G

that the contents thereof are something which would not have been
H H
obtained before the hearing on 28 August 2020 with reasonable diligence.
I In my judgment, the Ladd v Marshall threshold is not met. I therefore I

dismissed the 2 New Evidence Summonses.

J J

K Costs K

L 38. Costs should follow the event. Mr Man sought a certificate L

for 2 counsel. Ms Sit did not dispute these. I therefore awarded costs to
M M
the OSGH Parties, with a certificate for 2 counsel.
N N

Disposition
O O

39. For the reasons above, I made the order as set out in [4]
P P
above is made.
Q Q

40. Lastly, it remains for me to thank all counsel for the helpful
R R
assistance rendered to the court.
S S
( MK Liu )
T Deputy High Court Judge T

U U

V V
A A
Mr Bernard Man SC leading Mr Anthony Chan, instructed by Kennedys,
for ‍the plaintiff (by original action) and the 1st and 2nd defendants
B (by counterclaim) B

C
Ms Eva Sit SC leading Ms Esther Mak, instructed by Linklaters, for ‍the C
‍1st ‍and 2nd ‍defendants (by original action) and the plaintiff (by
‍counterclaim)
D D

E E

F F

G G

H H

I I

J J

K K

L L

M M

N N

O O

P P

Q Q

R R

S S

T T

U U

V V