in the high court of the
hong kong special administrative region
court of FIRST INSTANCE
ACTION NO. 2107 OF 2004
Before: Hon Rogers VP (sitting as an additional Judge of the Court of First Instance) in Chambers
Date of Hearing: 8 August 2005
Date of Judgment: 8 August 2005
1. This is an appeal from a decision of Master Kwan who refused to order security for costs in this case against the plaintiff. Theplaintiff is a US company and seems to be in a substantial way of business. It has a claim against the defendants. The claim arisesbecause it has lost the value of a shipment of copper concentrate which was to be processed in the PRC and sold there. The shipmentwas valued, it seems, at over US$1 million. The plaintiff’s case is that the shipment went missing; it got passed around and,as a result of proceedings in the People’s Republic of China, the plaintiff has come across documents which tend to show that the2nd defendant sold or at least received the proceeds of the goods.
2. The 2nd defendant’s answer to that is, whatever the documents say, it denies that they are their document. It says they were part of aforeign exchange deal and it simply exchanged renminbi for US dollars. Whether that was, in any event, a legitimate transactionin the People’s Republic, I do not know and I do not comment at this stage, but no doubt that will be examined in due course.
3. Whatever else happened, however, it does seem that the 2nd defendant did invoice in respect of this copper concentrate which was shipped up to Shanghai. The 2nd defendant says it is not its signature on the invoice. Having looked at the copies of the documents as best I can, all I can sayis that if these documents are to be disputed, they will have to be disputed in Court and I will leave the matter simply at that. But on the face of it, they do seem to show an invoice by the 2nd defendant, because although the top of the copy that I have been shown is blacked out and difficult to read, one can at least readthe 2nd defendant’s telephone number up at the top.
4. In my view, judging on what I have been shown, I consider that the Master came to the right decision, that this is not a case forsecurity for costs. The plaintiff seems to have been defrauded and has justifiable grounds for including the 2nd defendant in its claim and this matter should proceed to trial as quickly as possible.
Mr Jonathan Wong, instructed by Messrs Robertsons, for the Plaintiff/Respondent
Mr Samson Hung, instructed by Messrs Au-Yeung, Cheng, Ho & Tin, for the 2nd Defendant/Appellant