A AB HCA 3246/2016 B [2018] HKCFI 33 C C IN THE HIGH COURT OF THE D D HONG KONG SPECIAL ADMINISTRATIVE REGION E COURT OF FIRST INSTANCE E HIGH COURT ACTION NO 3246 OF 2016 F ____________ G G H BETWEEN H TAO, SOH NGUN Plaintiff I I (also known as LO TO LI KWAN or LO TO LEE KWAN) J (in her personal capacity and in the capacity as the sole J executrix of the estate of Lo Ying Shek (also known as K Lo Tau Koon or Lo Ping), deceased) K L and L HSBC INTERNATIONAL TRUSTEE LIMITED Defendant M M ____________ N N O Before: Hon Chow J in Chambers (Open to Public) O Date of Hearing: 21 December 2017 P Date of Decision: 12 January 2018 P Q Q __________________ D E C I S I O N R R __________________ S S INTRODUCTION T T U U V V - 2 - A A B 1. The issue for determination is whether the Defendant should B be ordered to give further and better particulars of various pleas in the C C Amended Defence under the Plaintiff’s summons dated 21 November D 2017. D E E BRIEF OVERVIEW OF THE PARTIES’ RESPECTIVE CASES F (i) The Plaintiff’s case G 2. The Plaintiff is the wife of the late Mr Lo Ying Shek (“the G Father”), who passed away on 1 September 2006. They were the H H co-founders of the Grate Eagle Group (“GE”), with The Great Eagle I Company, Limited as its holding company, the shares of which have been I publicly listed in Hong Kong since 1972. J J K 3. On 14 April 1984, the Father and the Plaintiff set up two K private discretionary family trusts known as “The Lo Ying Shek Family L L Trust” (“the Trust”) and “The Lo To Li Kwan Trust” (“the Plaintiff’s M Trust”) respectively for the purpose of minimizing the estate duty payable M in respect of their assets passing on their death whilst effective control N N over those assets would be retained by the Father and the Plaintiff during O their lifetime. Hongkong Bank Trustee Limited (“the Original Trustee”) O was appointed as trustee of the two trusts. P P Q 4. On or about 14 June 1984, the Father and the Plaintiff Q decided to merge the Plaintiff’s Trust with the Trust, and to jointly use the R R Trust for the aforesaid purpose. On or about 21 July 1984, the Plaintiff’s S Trust was wound up and the name of the Trust was changed to “The Lo S Family Trust”. T T U U V V The assets of the Trust (“the Trust Fund”). include substantially the entirety C C of their respective assets and in particular.3 - A A B 5. D D 6. their controlling interest in GE. and that such wishes. In around November 1999. R R S 8. . requests N N and instructions would be given to the Original Trustee in O writing from time to time. J J (2) The Original Trustee would administer the Trust and the K assets to be injected into the Trust in accordance with the K wishes. T T U U V V . the M Original Trustee would accede to the wishes. requests and M instructions of the survivor). the Father and the Plaintiff that:. there was a common understanding E E (“the Alleged Common Understanding”) between the Original Trustee. requests and instructions of the Father and the L L Plaintiff (and should either of them predecease the other. which were B provided by the Father and the Plaintiff. the Defendant (HSBC Q International Trustee Limited) became the trustee of the Trust in place of Q the Original Trustee. F (1) The Trust was to be established solely for the purpose of G G minimizing the estate duty payable in respect of the Father H and the Plaintiff’s assets passing on their death whilst H allowing them to retain effective control over those assets I I during their lifetime. O P P 7. The Alleged Common Understanding continued after the S Defendant took over as trustee of the Trust. At all material times. O (1) take serious account of the Plaintiff’s requests and P P instructions as the primary or material consideration. . and all matters concerning the G administration of the Trust and the Trust Fund were carried H H out upon the instructions of the Father and/or the Plaintiff. since January 2016. M M 11. pursuant to the Alleged Common D Understanding. However. T T U U V V . B (1) all the instructions given by the Father and/or the Plaintiff to C C the Original Trustee or the Defendant were fully complied D with and followed. requests and instructions. the Defendant is under a O duty to. the Defendant suddenly J J departed from the Alleged Common Understanding and refused to follow K or adhere to the Plaintiff’s requests or instructions as regards the K administration of the Trust and the Trust Fund as set out in a series of L L letters issued in 2016 (“the 2016 Letters”). Q Q (2) consider and take serious account of the Alleged Common R Understanding. Prior to January 2016:. I I 10. inter alia:.4 - A A B 9. In the exercise of its powers and discretions in the N N administration of the Trust and the Trust Fund. and E E (2) the Original Trustee and the Defendant never purported to F exercise any of their discretionary powers under the relevant G trust deed (“the Trust Deed”). in particular the understanding that it would R administer the Trust and the Trust Fund in accordance with S S the Plaintiff’s wishes. was the founder. the Plaintiff claims against the Defendant for. the Defendant breached its duties as trustee of the Trust. and the Defendant N exercised its powers in such a manner as to favour Lo Ka Shui’s interests N over the interests of the Plaintiff and other beneficiaries of the Trust. or alternatively the Defendant be removed as trustee of the R Trust. and E E (4) comply with and follow the Plaintiff’s requests and instructions concerning the administration of the Trust F during her lifetime unless there is a very good reason not to G G do so. an order that the Defendant do forthwith consider or Q Q re-consider the Plaintiff’s requests and instructions as contained in the R 2016 Letters. In departing from the Alleged Common Understanding and I I in failing or refusing to give effect to the Plaintiff’s requests and J instructions.5 - A A B (3) consider and take serious account of the Plaintiff’s legitimate B expectation that the Defendant would (inter alia) continue to C C comply with and follow her requests and instructions D concerning the administration of the Trust during her D lifetime. H H 12. . P inter alia. Lo Ka Shui. in that it has at all material times been the L trustee of a discretionary trust of which one of the children of the Father M M and the Plaintiff. S S T (ii) The Defendant’s case T U U V V . Further. the Defendant allowed itself to be placed in a L position of conflict of interests. By this action. J K K 13. O O P 14. namely. The Trust is a conventional discretionary trust. At the hearing on 21 December 2017. The Original Trustee assumed and occupied office as trustee H of the Trust in 1984 and executed the Trust on the basis that the powers H and provisions as declared and contained in the Trust Deed were the trusts I I on which it held the Trust Fund. and is entitled to give such N weight to any such wishes as it thinks appropriate (see paragraph 14(4) of N the Amended Defence). The B Defendant. the proposition at paragraph 29-163 of Lewin on Trust.6 - A A B 15. even to the extent of them being the primary or material R consideration. as trustee of the Trust. as P I understand him. The Defendant is entitled to E E exercise its powers in such manner as it thinks fit in its “absolute and uncontrolled discretion”. . O O Mr Eugene Fung. SC (on behalf of the Defendant) also accepted. R S S T T U U V V . P 19th Ed. The Defendant has continued to act on J the same basis after it replaced the Original Trustee as trustee of the Trust J in November 1999. that the Defendant is “bound” to take serious account of the Q Q settlor’s wishes. has under the Trust Deed the widest C C powers of appointment and application of capital and income for the D benefit of all or any one or more of the beneficiaries. K K L 17. F G G 16. together with wide D powers of investment and management. The Defendant is under a duty (inter alia) to consider the L wishes of the Plaintiff whose wishes the Defendant in its discretion M M considers relevant to the exercise in question. . Although the Original Trustee and Defendant did in practice from time to time act in accordance with the Father’s wishes in F relation to ministerial acts of investment and administration of the Trust. H I I 20. R S (1) At paragraph 19. in the C C proper exercise of its discretion. 59 and 64 thereof. various letters and written T T instructions were issued by or on behalf of the Father and the U U V V . G G they were not undertaken pursuant to the Alleged Common H Understanding. D D 19.7 - A A B 18. namely. which it is not necessary for me to K K set out in this decision. it determines otherwise. or act in B accordance with. Q Q R 22. the Plaintiff pleads that pursuant to the S Alleged Common Understanding. The Defendant is entitled to give effect to. In order to understand those O O paragraphs. In the Re-Amended Statement of Claim:. the settlor’s wishes. it is necessary first to refer to the relevant averments in the P Re-Amended Statement of Claim which were responded to by those P paragraphs of the Amended Defence. N paragraphs 26(1). The Defendant’s reasons or justification for not acceding to J the Plaintiff’s requests or instructions as contained in the 2016 Letters are J fully pleaded in the Amended Defence. but is not obliged to do so if. The Plaintiff’s first set of requests for further and better N particulars relates to three paragraphs of the Amended Defence. The Defendant disputes the Alleged Common E E Understanding. L L THE PLAINTIFF’S FIRST SET OF REQUESTS M M 21. . Particulars D are given in respect of 7 matters (defined as the “Specific D Instructions to the Original Trustee”) in sub-paragraphs (1) E E to (7). N N (3) At paragraph 21. O particularized in sub-paragraphs (1) to (6).8 - A A B Plaintiff to the Original Trustee from 1984 to 1999 setting B out their specific requests and instructions concerning the C C administration of the Trust and the Trust Fund. and all matters concerning the administration L of the Trust and the Trust Fund were carried out upon the M M instructions and/or consent of the Father and/or the Plaintiff. the Original Trustee never K K purported to exercise any of its discretionary powers under L the Trust Deed. R R (4) At paragraph 28. the Plaintiff pleads that each of the Specific I I Instructions to the Original Trustee were fully complied with J by the Original Trustee pursuant to the Alleged Common J Understanding. the Plaintiff refers to the Original Trustee’s O conduct in relation to a number of specific matters. the Plaintiff pleads that pursuant to the S S Alleged Common Understanding. Further. followed by a general averment in sub-paragraph (8) that “The Plaintiff does not have in her possession copies of F all the letters and written instructions issued to the Original G G Trustee and reserves her right to provide further particulars H after discovery”. “as evidencing P P the [Alleged] Common Understanding and the Original Q Trustee’s agreement to abide by it in the administration of Q the Trust and the Trust Fund”. various letters were issued T by or on behalf of the Father and the Plaintiff to the T U U V V . H (2) At paragraph 20. Particulars are given in respect of 4 D matters (defined as the “Specific Instructions to the D Defendant”) in sub-paragraphs (1) to (4). the Defendant admits that during the O Father’s lifetime – that is over the 15 years between 1984 P P and 1999 – the Original Trustee did in practice from time to Q time act in accordance with the Father’s wishes in relation to Q ministerial acts of investment and administration of the R R Trust. In the Amended Defence:.9 - A A B Defendant since November 1999 setting out their requests B and instructions concerning the administration of the Trust C C and the Trust Fund. N O (1) At paragraph 23. the Defendant never J purported to exercise any of its discretionary powers under K K the Trust Deed. U U V V . H (5) Lastly. Further. including the matters referred to sub-paragraphs 19(1) S to (7) and sub-paragraphs 21(1) to (5) of the Amended S Statement of Claim. the Plaintiff pleads that each of the H Specific Instructions to the Defendant were fully complied I I with by the Defendant pursuant to the Alleged Common J Understanding. M M N 23. followed by a E E general averment (in sub-paragraph (5)) that “The Plaintiff does not have in her possession copies of all the letters and F written instructions issued to the Defendant and reserves her G G right to provide further particulars after discovery”. but denies that they were undertaken T T pursuant to the Alleged Common Understanding. prior to 2016. . at paragraph 29. and all matters concerning the administration L of the Trust and the Trust Fund were carried out upon the L instructions and/or consent of the Father and/or the Plaintiff. the Plaintiff) . though in fact … that J matter was dealt with as a technical issue between the J Defendant. the Original Trustee or the R R Defendant (as the case may be) . The Plaintiff’s first set of requests for further and better L particulars relates to the following pleas in the Amended Defence. K K L 24. In so far as the matter H referred to in sub-paragraph 28(4) is concerned. . M M namely:- N (1) Paragraph 26(1) – N O “The Defendant denies as regards the Original Trustee O (paragraph 20 of the Amended Statement of Claim) and the P P Defendant (paragraph 29 of the Amended Statement of Claim) Q that in any of the cases relied on by the Plaintiff and pleaded Q to at !paragraphs 23 to 25 above. insofar as was also the S case. but denies that they were undertaken pursuant to the G G Alleged Common Understanding. the H Defendant avers that “the position is equally explicable [as I I in relation to the other three matters]. D paragraphs 28(1) to (3) of the Amended Statement of Claim E E act in accordance with the Father’s wishes in relation to ministerial acts of investment and administration of the F Trust. the Defendant further admits that during B the remainder of the Father’s lifetime – that is over the C C following 7 years between 1999 and 2006 – the Defendant D did on the three occasions referred to in sub.was not exercising discretions T T conferred on it as trustee of the Trust. JSM and a representative of GE …”.in acting in accordance S with the wishes of Mr Lo (and.10 - A A B (2) At paragraph 24.” U U V V . . The further and better particulars sought by the Plaintiff are I as follows:- J J (1) State whether it is the Defendant’s case that the K K Defendant or the Original Trustee has ever exercised its L discretion when it purported to exercise any of the L powers under the Trust Deed.. giving i n respect of each such O O occasion full particulars of the following: P (i) the date when the discretion was allegedly exercised.. S T (iv) the matters that the person(s) who made the decision T U U V V . P Q (ii) the identity of the person(s) who al1egedly Q exercised the discretion on behalf of the Defendant R R or the Original Trustee. S (iii) the subject matter of the decision. and generally (including as regards the F matters chronologically pleaded at paragraph 30 of the G Amended Statement of Claim).” D E (3) Paragraph 63 – E “In the premises.. and if so. the Defendant repeats paragraphs 23 and 26 above D .” H H I 25. set out in a M M chronological order each and every occasion when it is N alleged that the Defendant or the Original Trustee did N exercise its discretion.11 - A A B (2) Paragraph 59 – B “As to paragraph 19 to 21 of the Amended Statement of C C Claim. paragraph 29 of the G Amended Statement of Claim is denied. and F (vi) whether the decision maker took into account any G matter other than the fact that it was Mr Lo G Ying Shek’s and/or the Plaintiff’s instruction or H H request that the Defendant or the Original Trustee I should exercise the power. R R (ii) the subject matter of the request or instruction. and if so. and if so.12 - A A B have taken into account in the exercise of the B discretion. . set out all the I matters which were taken into account. stating in respect of each such O occasion: O (i) the date when the Defendant or the Original Trustee P P allegedly exercised its discretion to refuse to accede Q to a request or instruction from Mr Lo Ying Shek Q and/or the Plaintiff (or anyone acting on their behalf). give full particulars of N N each of such occasions. C C (v) whether the decision was in accordance with the D instructions or requests made by Mr Lo Ying Shek D and/or the Plaintiff (or anyone acting on their behalf) E E in respect of the subject matter. S S (iii) the identity of the person(s) who allegedly exercised T the discretion on behalf of the Defendant or the T U U V V . J J K (2) State whether it is the Defendant’s case that it or the K Original Trustee has ever exercised its discretion in L L declining or refusing to accede to a request or instruction M from Mr Lo Ying Shek and/or the Plaintiff (or anyone M acting on their behalf). please state in respect of each occasion: J (i) the date when the Defendant or the Original Trustee J allegedly exercised such discretion. K K (ii) the subject matter of the exercise of power. L L (iii) the identity of the person(s) who allegedly exercised M the discretion on behalf of the Defendant or the M Original Trustee. First. for the following R reasons. and B (iv) the matters which the person(s) who exercised the C C discretion took into account in refusing to accede D to the request or instructions from Mr D Lo Ying Shek and/or the Plaintiff. R S S 27. in acting in accordance with the T U U V V . and I I if so. the Defendant denies that. P P 26. In my view. E E (3) State whether it is the Defendant’s case that it or the F Original Trustee has ever exercised its discretion in the G G exercise of the powers under the trust which did not H result from a request or instruction from Mr Lo Ying Shek H and/or the Plaintiff (or anyone acting on their behalf). . the Plaintiff is not entitled to the particulars Q Q sought referred to in paragraph 25(1) above. by paragraphs 26(1).13 - A A B Original Trustee. 59 and 64 of the Amended T Defence. and N N (iv) the matters which the person who exercised the O O discretion took into account. for otherwise there will be doubt as to what are the T U U V V . which. if established. the defendant will be Q precluded from setting up an affirmative case in answer. Whether it does so or not depends on whether it is. if it is not possible to read P into the mere denial of the negative allegation any affirmative P allegation beyond that which is necessarily implied from such a traverse. for pleading purposes the denial of a negative allegation does not necessarily involve M M the making of an affirmative proposition. The question is F whether such denial is a mere traverse (in respect of which no G G particulars will be ordered). a mere traverse. is in fact pregnant with an affirmative. Such a traverse necessarily involves a double L negative. if it is clear to the court. on the other hand. particulars will not be ordered. those pleaded by the Plaintiff at paragraphs 19. It can be seen immediately that the Defendant is denying a negative allegation. for that would be to allow him to set up a case which he has not R R pleaded. on the one hand. particulars of such an affirmative case will be T ordered. the D Original Trustee or the Defendant were not exercising discretions E E conferred on them as trustee of the Trust. N or.14 - A A B wishes of the Father in relation to a number of specific matters B (namely. The H distinction between the two was clearly explained by Godfrey J (as I I he then was) in Tin Shui Wai Development Ltd v AG [1991] 1 J HKC 509 at 511-512. O whereby the defendant simply puts the plaintiff to the proof of O the negative alleged. in ordinary parlance. although. as follows:. The denial of a negative allegation may operate as a bare traverse and no more. J K “It is for present purposes essential to notice that what we have K here is a negative allegation made by the plaintiff and traversed by the defendant. either from the nature of the case or from what is stated by counsel or S otherwise. a traverse which. 21 and 28 of C C the Re-Amended Statement of Claim and responded to by the D Defendant at paragraphs 23 to 25 of the Amended Defence). that the defendant intends to set up an affirmative S case. a double negative L must involve an affirmative proposition. would defeat the plaintiff's prima facie case. though negative in N form. Alternatively. but. or a negative pregnant with an H affirmative (in respect of which particulars will be ordered). but then once the Q plaintiff establishes a prima facie case. In such a case. . ” D D E 28. 21 and 28 of the Re-Amended K Statement of Claim and responded to by the Defendant at K paragraphs 23 to 25 of the Amended Defence. It is not. O would say that they did. I consider that a fair reading of the E Amended Defence. an L L essential part of the Defendant’s defence to the Plaintiff’s claims to M prove affirmatively that the Original Trustee and the Defendant did M properly exercise the discretions conferred on them as trustee of the N N Trust in relation to those matters. or amended. the pleading will be regarded as C embarrassing and evasive and it will be ordered to be struck C out. or particulars may be ordered of any affirmative case relied on. but that is not the same as setting up an P P affirmative case regarding the exercise of their discretions in relation Q to the aforesaid specific matters.15 - A A B issues to be determined between the parties. in particular the various pleas mentioned in F paragraph 24 above in the context of the issues raised on the pleadings. . In the present case. of O course. it is important to note that there is no H H allegation on the pleadings that the Original Trustee or the Defendant I failed to properly discharge their duties as trustee in acting in accordance I with the wishes of the Father in relation to the specific matters pleaded J J by the Plaintiff at paragraphs 19. as I see it. Where the denial B of a negative allegation leaves it in doubt as to what the true nature of the denial is. G is that the denial is a mere traverse and not a pregnant negative raising an G affirmative case. if asked or pressed. Q R R 29. In this regard. The Defendant would not. accept that they failed to do so and. It is also important to note that the Plaintiff’s allegation S that the Original Trustee and the Defendant never properly exercised S their discretionary powers under the Trust prior to 2016 but simply T T acted in accordance with the wishes of the Father and/or the Plaintiff U U V V . either from the nature of the case or from the admission of counsel or otherwise. even if the Plaintiff D should successfully prove such allegation at the trial. H H 30. It seems to me that the converse must also hold good. Mr Fung has stated that the relevant paragraphs of P the Amended Defence giving rise to the requests for particulars:. P Q “do not involve any traverse which imports affirmative Q allegations as to which particulars should be ordered. without making any affirmative allegation beyond that S which is in any event to be implied from the denial of [the Plaintiff’s] negative allegation” (see paragraph 31 of Mr T Fung’s Skeleton Submissions dated 19 December 2017). The question of whether a denial of a negative allegation I I amounts to a mere traverse or a pregnant negative raising an J affirmation case is to be determined primarily on the basis of the existing J pleadings.16 - A A B is put forward for the purpose of evidencing the Alleged Common B Understanding. because it may mean just that the Original Trustee F and the Defendant failed to properly exercise their discretion G G independently. it does not E E necessarily mean that there was indeed the Alleged Common Understanding. so that the traverse is what has M been described as a negative pregnant. T U U V V . Nevertheless. Those paragraphs of the [Amended Defence] merely traverse [the R R Plaintiff’s] allegation that [the Defendant] never exercised any of its discretionary powers under the Trust Deed prior to S 2016. it seems to me that particulars of the affirmative case ought to be delivered. Subject to the question of the admissibility of such C C evidence which I understand will be challenged by the Defendant and D will have to be determined by the trial judge. . Limited [1941] 2 KB 72 at 80:- L L “If it is clear to the Court.” N N 31. as stated by Goddard LJ in Pinson v Lloyds K K and National Provincial Foreign Bank. In O O the present case. that it is intended M to set up an affirmative case. The above reasons also apply to the Plaintiff’s requests R for the particulars referred to in paragraph 25(2) and (3) above.17 - A A B I consider that I am entitled to act upon this confirmation given by B leading counsel on behalf of the Defendant. no proper K K basis for the Plaintiff to seek such wide ranging particulars having regard L to the limited pleas in paragraphs 26(1). it is clear that the Defendant has not alleged in the Amended S S Defence that it or the Original Trustee ever “exercised its discretion T in declining or refusing to accede to a request or instruction from Mr T U U V V . it is clear that the denials in paragraphs 26(1). application. That being the N position. 59 and 64 of the Amended L Defence. Second. P Q Q 33. the particulars sought cannot be regarded as being N “necessary either for disposing fairly of the cause or matter or for O O saving costs” under Order 18. There is. 59 D and 64 of the Amended Defence relate only to the specific matters E E pleaded by the Plaintiff at paragraphs 19. The Plaintiff’s G G request for particulars referred to in paragraph 25(1) above goes H considerably beyond the Defendant’s pleas. narrower. In R addition. Cap 4A. In this connection. . I note that the Plaintiff has not put M M forward any alternative. in that the Plaintiff is H asking the Defendant to “set out in a chronological order each and I I every occasion when it is alleged that the Defendant or the Original J Trustee did exercise its discretion” and then give detailed particulars in J respect of each and every such occasion. rule 12 (3B) of the Rules of the High P Court. 21 and 28 of the Re-Amended Statement of Claim and responded to by the Defendant F at paragraphs 23 to 25 of the Amended Defence. C C D 32. I consider. been alleged on the E E pleadings. It would not. in my view. T T U U V V . in fact. N N THE PLAINTIFF’S SECOND SET OF REQUESTS O O 35. The Plaintiff’s second set of requests relates to P P paragraph 54(3)(b) of the Amended Defence. it is necessary first to refer to paragraph 14 of the Q Re-Amended Statement of Claim. it is not the Plaintiff’s case that the H Trust was a sham. of course. which pleads as follows:- R R “… At all material times since the establishment of the Trust. entitled to ask for D particulars of something which has not. the question may legitimately be asked whether the true J arrangement of the relevant parties involved a conspiracy to defraud K K the Estate Duty Commissioner. . There is one other matter that I cannot let pass without G G mentioning in this Decision. In order to understand that Q paragraph. J However. It is plainly not possible for this issue L to be resolved in the present application. F 34.18 - A A B Lo Ying Shek and/or the Plaintiff” or “exercised its discretion in the B exercise of the powers under the trust which did not result from a C C request or instruction from Mr Lo Ying Shek and/or the Plaintiff” prior D to 2016. The Plaintiff is not. As pointed out by Mr Fung at the H hearing on 21 December 2017. ought to be investigated at the trial. I shall leave it to the trial L judge to consider whether the issue of the legality of the arrangement. M M as well its implications. the Original Trustee (for the period until its replacement by the S S Defendant in around November 1999) and the Defendant (since November 1999) were paid a fixed annual fee for their services. be in the interests of either I I the Plaintiff or the Defendant to contend that the Trust was a sham. were important K customers of various business functions of the HSBC K Group. The further and better particulars sought by the Plaintiff are M M as follows:- N (1) State the names of those Children who are or have been N “important customers of various business functions of the O O HSBC Group”. In respect of this allegation. (ii) Mr. Lo. .” C C 36. and/or that the Trust is accorded F special terms as to fees. and the Plaintiff.” L L 37. Mr. the above plea is made to support the D “implicit” allegation referred to in paragraph 54(3) of the Amended E E Defence. namely. (iii) each of the Children named S in sub-paragraph (1) above. and R R (3) State the precise “business functions” of the HSBC Group S which (i) GE. in paragraph 54(3)(b) of the Amended Defence. the Defendant’s response H (inter alia). SC (for the Plaintiff) at D the hearing on 21 December 2017. P P (2) State on what basis or criteria does the Defendant Q consider those Children identified in (1) above as Q “important customers”. because the Trust is not a genuine trust G G established and operated in accordance with its trust documentation and H governing law”. Lo.19 - A A B which was relatively insubstantial compared with the value of B the Trust Fund. various of the Children. is that – I I “the Original Trustee and the Defendant have been J willing to continue in office on fixed rather than J percentage fees in circumstances where GE. that the “fees are not substantial relative to the exceptional value of the trust property. As confirmed by Mr Benjamin Yu. and (iv) the Plaintiff are or T T U U V V . It seems to me that H the requests ask for particulars of fact which go directly to the H Defendant’s allegation that “GE.20 - A A B have been important customers. and I I the Plaintiff” were “important” customers of the HSBC Group. to be taxed if not agreed. including particulars as to B the services provided by HSBC to each of them and the C C time period during which such services were allegedly D provided. I am T T not inclined to grant certificate for two counsel. various of the Children. U U V V . I order the Defendant to give the O particular sought by the Plaintiff referred to in paragraph 37 above within O 14 days of the date of the order herein. which the Defendant has successfully resisted. For the foregoing reasons. D E E 38. is “relatively insubstantial compared L with the value of the Trust Fund”. according to the Plaintiff. This having been said. Overall. In view of the fact that the application relates only to a matter S of particulars which seems to me to be relatively straight forward. Lo. and J would explain why the Original Trustee and the Defendant would be J prepared to accept a fixed percentage fee for acting as trustee of the Trust K K which. Mr. Q I consider that a fair order to make would be that the Defendant shall R R have 80% of the costs of the application. L M M DISPOSITION N N 39. and S I so order. most of the P P time at the hearing on 21 December 2017 was spent on the first set of Q requests. I consider that the Plaintiff is entitled to the particulars sought. . On the issue of costs. I am unable to accept Mr Fung’s submissions that those F particulars relate to “matters of evidence”. or are “wholly unnecessary for G G the fair disposal of this action or for saving costs”. instructed by Vivien Chan & Co. D D E E (Anderson Chow) F Judge of the Court of First Instance High Court G G H Mr Benjamin Yu. SC and Ms Sara Tong. to whom I am greatly C C indebted. for J the Defendant 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 .21 - A A B I should acknowledge that I have substantially benefitted from the careful B and cogent submissions of counsel from both sides. SC and Ms Janet Ho. H for the Plaintiff I I Mr Eugene Fung. instructed by Clifford Chance. .