HENRY SHING HIM CHOW AND ANOTHER v. LING KAM TONG, VICTOR AND OTHERS

CAMP 104, 105 & 106/2025, [2026] HKCA 72

On Appeal From [2024] HKCFI 1729 & 2737

(Heard together)

CAMP 104/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 104 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1521 OF 2021)

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CAMP 105/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2025

(ON AN INTENDED APPEAL FROM HCAL NO. 1521 OF 2021)

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CAMP 106/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 106 OF 2024

(ON AN INTENDED APPEAL FROM HCMP NO. 1305 OF 2021)

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.  By a Decision of Madam Justice Tsui (“Judge”) dated 14 October 2024 (“Decision”): (i) the applications of the 1^st and 2^nd Defendants (“Trustees”) to stay the proceedings under HCMP 1305/2021 (“Action (1)”) and HCA 1521/2021 (“Action (2)”) in favour of BVI courts were dismissed; (ii) a similar stay application by the 3^rd Defendant’s (“Chow”) in respect of Action (2) was also dismissed; and (iii) summary judgment was granted against the Trustees in Action (1) (“Judgment”) pursuant to Order 28, rule 4 of the Rules of the High Court, Cap 4A (“RHC”).

2.  By another Decision dated 13 May 2025 (“Leave Decision”), the Judge dismissed the Trustees’ applications : (i) for leave to appeal against the Decision; (ii) extension of time to appeal against the Judgment; and (iii) stay of proceedings pending appeal.  The applications of Chow for leave to appeal and stay pending appeal were likewise dismissed. 

3.  There are before this Court four Summonses all filed on 27 May 2025 :

(1)     Under CAMP 105/2025 (on an intended appeal from Action (2)), the Trustees (i) renew their application for leave to appeal against the Decision; and (ii) seek an interim stay pending determination of the leave application and appeal (if leave is granted);

(2)     Under CAMP 106/2025 (on an intended appeal from Action (1)), the Trustees seek identical relief as in CAMP 105/2025;

(3)     Under CAMP 106/2025, the Trustees also apply for (i) leave to appeal out of time against the Judgment by reason of their failure to file an appeal with the Court of Appeal within time; and (ii) a stay of execution of the Judgment pending resolution of the application and the appeal (if time extension is granted);

(4)     Under CAMP 104/2025 (on an intended appeal from Action (2)), Chow also (i) renews his application for leave to appeal against the Decision; and (ii) seeks an interim stay of proceedings pending the determination of the leave application and/or the appeal (if leave is granted).

Background

4.  These disputes concern a family trust known as “CW Family Trust” (“Trust”) established under a Deed of Settlement (“Settlement Deed”) in 2009.  The Trust was made as a result of a couple’s divorce.  The 2^nd Plaintiff is the former wife of Mr Ronald Chow and the 1^st Plaintiff is their eldest son.  The 1^st Plaintiff is one of the named beneficiaries of the Trust.  The 2^nd Plaintiff is one of the two settlors (the other being Mr Chow Ying Bor) and also one of the named beneficiaries of the Trust.  However, her status as a beneficiary of the Trust is in dispute.  The 1^st and 2^nd Defendants are the trustees appointed under the Trust.

5.  According to the Plaintiffs, in July 2021 it was discovered that a substantial part of the assets held under the Trust, namely, 99.95% of the shares (“Shares”) of Lip Hing Holding Ltd (“Company”), was transferred to Chow, a stranger to the Trust.  The Plaintiffs requested information from the Trustees about the transfer but they were stonewalled by them.  The Plaintiffs also requested information from Chow, who did not reply to the request.

6.  By an Originating Summons dated 7 September 2021, the Plaintiffs commenced Action (1) against the Trustees for disclosure of documents relating to the transfer of the Shares and an account of the Trust with supporting documents.

7.  By a writ filed on 5 October 2021, the Plaintiffs commenced Action (2) against the Trustees (as 1^st and 2^nd Defendants) and Chow (as 3^rd Defendant).  As against the Trustees, the Plaintiffs allege that they had fraudulently or recklessly or negligently misappropriated the Shares at no consideration or at gross undervalue.  This was done without any authorization of the beneficiaries, and it amounted to breach of trust or their fiduciary duties.  The Plaintiffs say that the Trustees’ refusal to disclose information about the Company was unreasonable and amounted to a breach of their accounting duty.  As against Chow, the Plaintiffs pleaded that he received the Shares without paying any or any sufficient consideration.  The relief sought by the Plaintiffs include a declaration that Chow holds the Shares on trust for the beneficiaries.

8.  The Defendants raised jurisdiction challenge in both sets of proceedings.  They argue that Clause 17 of the Settlement Deed confers exclusive jurisdiction on the BVI courts over the subject matters of Actions (1) and (2), which should therefore be stayed.

9.  In response to the Plaintiffs’ application for summary judgment in Action (1), the Trustees only relied on their jurisdiction challenge without adducing any evidence on substantive merits or saying anything about why disclosure should not be ordered.

The Decision

10.  In the Decision, the Judge set out at [49] the issues she was required to resolve as follows (in summary) :

(1)     Whether Clause 17 of the Settlement Deed was an exclusive jurisdiction clause (“EJC”) (Issues 2);

(2)     If the Clause 17 was an EJC, whether Actions (1) and (2) should be stayed as between the Plaintiffs and the Trustees (without giving consideration to the Plaintiffs’ claim against Chow) (Issue 3);

(3)     If Clause 17 was an EJC, could Chow rely on it to seek a stay as between him and the Plaintiffs (Issue 5)?

(4)     If Chow was not entitled to rely on Clause 17, whether Action (2) should be stayed as between Chow and the Plaintiffs in favour of the BVI courts on the ground of forum non conveniens (“FNC”) (Issue 7);

(5)     In the event that the court arrived at different conclusions on the Trustees’ and Chow’s stay applications when each was viewed on its own, should the proceedings be conducted in two different jurisdictions? If not, should they continue in Hong Kong or the BVI? (Issue 8)

11.  In respect of Issues 2 (EJC), the Judge held that as a matter of construction Clause 17 was an EJC.  It conferred exclusive jurisdiction on the BVI courts over matters relating to the Trust and such jurisdiction included both friendly and hostile litigation (involving breach of trust claims against the Trustees) (Decision, [111] and [124]).

12.  As to Issue 3 (whether proceedings should be stayed between the Plaintiffs and the Trustees), the Judge considered that the court was not bound by Clause 17, but had a discretion to decide whether or not to stay the proceedings ([126]).  However, the Judge took the view that the proceedings between the Trustees and the Plaintiffs should be stayed by reason of Clause 17 for the following reasons :

(1)     In the trust context, the burden was on the party seeking to avoid the EJC to establish “sufficiently good reasons” not to adhere to the EJC, applying Crociani v Crociani [2014] UKPC 40, 17 ITELR 624 and A v B[2022] HKCFI 1031 (Decision, [74]; [126]-[128]);

(2)     Applying the contractual approach in Noble Power Investments Ltd v Nissei Stomach Tokyo Co Ltd [2008] 5 HKLRD 631 in the trust context, bearing in mind in particular the need to respect the autonomy of the settlor and to promote certainty in the administration of the trust (Decision, [141]-[143]), the Judge considered that it was not appropriate to conduct abalancing exercise under the principles of Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, as the beneficiary was expected to defer to the settlor if he wished to take under the trust ([143]);

(3)     Thus, the Judge considered that factors such as convenience did not amount to a sufficiently good reason for departing from Clause 17, and none of the connecting factors with Hong Kong by themselves constituted sufficiently good reason for not respecting the autonomy of the settlors.  The Judge therefore took the view that, without giving consideration to the Plaintiffs’ claim against Chow, the Plaintiffs had failed to establish sufficiently good reason for not observing Clause 17 ([154]).

13.  In relation to Issues 5 and 7 (Chow’s reliance on Clause 17 and FNC) the Judge considered that as between Chow and the Plaintiffs Action (2) should not be stayed on FNC grounds ([196]-[197] and [204]) for the following reasons :

(1)     Chow was a stranger to the Trust with no relationship with it.  He could not rely on Clause 17.  The Judge rejected the submission that Chow being sued as a constructive trustee would have assumed duties under the Trust rather than a stranger to the Trust, because the constructive trust imposed on Chow arose by operation of law and it could not be said that he had assumed any duty expressly provided for under the terms of the Trust ([199]-[202]);

(2)     After conducting a Spiliadaexercise, the Judge considered that apart from the governing law and the latest BVI proceedings (which were commenced after the Hong Kong proceedings) being neutral factors, every other factor pointed to Hong Kong court being the more appropriate forum for the trial of the claims against Chow ([196]).

14.  As the Judge was faced with different conclusions as to whether the Hong Kong proceedings should be stayed (as between the Trustees and the Plaintiffs on one hand and as between Chow and the Plaintiffs on the other), the Judge approached Issue 8 with two questions, namely, (i) whether the proceedings against the Trustees and against Chow should be heard in two jurisdictions (the BVI courts and the Hong Kong court) (“Question (1)”); and (ii) if not, in which forum should they be heard (“Question (2)”).

15.  In relation to Question (1), the parties all agreed that the proceedings should be tried in one single forum.  The Judge agreed as the claims against the Trustees and those against Chow were inextricably linked arising from a single incident, and the claims should be tried together in one single jurisdiction to avoid the risks and pitfalls associated with multiple proceedings in different jurisdictions ([207]-[214]).

16.  As regards Question (2), the Judge considered the task was to decide, as between Hong Kong and the BVI, which court is better placed to hear the present proceedings.  The Judge approached the question by considering which option would better serve the interests of justice.  To answer this question, the Judge considered the following factors ([215]-[220]) :

(1)     There were a number of material factors, including the fact that the Trustees and Chow were Hong Kong residents and they were served with the proceedings within this jurisdiction.  The Plaintiffs therefore commenced the proceedings against them as of right.  To stay them in favour of the BVI courts would deprive the Plaintiffs of their entitlement to sue in Hong Kong;

(2)     The Judge had taken the view that Hong Kong court was clearly the more appropriate forum for the trial of Action (2) ([216])[1].  Chow could not really complain if the proceedings were tried in Hong Kong as he was not a party to the Trust or in any way privy to it;

(3)     In relation to the Trustees, the question was whether, taking into consideration the claims against Chow, there was any sufficiently good reason why the court should not give effect to Clause 17.  The Judge was of the view ([219]) that, when the claims against Chow were taken into account, there were sufficiently good reasons:

(a)     There was a genuine need to avoid parallel proceedings in Hong Kong and the BVI, and the court had to make a choice between the two jurisdictions;

(b)     Hong Kong court was the better option based on (i) the Plaintiff should be allowed to sue Chow in Hong Kong; (ii) the Trustees were sued in Hong Kong as of right; and (iii) Hong Kong was clearly the more appropriate forum on FNC analysis.  The Judge therefore considered that it would be in the interests of justice to have the case tried in Hong Kong;

(c)     Further, the circumstances of the case justified the court’s exercise of its inherent jurisdiction to supervise the administration of trusts in general and to protect the interests of the beneficiaries where necessary ([220]).

17.  The Judge rejected the Defendants’ reliance on Lammas Global Corporation v Barclays Bank (Suisse) SA, HCA 2411/2009, 13 April 2011, where they argued that, similar to Lammas Global, the claim against Chow was something that was foreseeable when the Trust was created.  The Judge did not accept that the settlors would have contemplated in their minds when drafting Clause 17 that a beneficiary might sue a complete stranger to the Trust; and the objective intention must have been that the clause should only apply to or affect parties to the Trust or those privy to it and not complete strangers.  Further, the Judge considered that the reliance on Lammas Global was misplaced and it was distinguishable on the facts, in particular, all the defendants in Lammas Global were related companies within the same group and the plaintiff could properly be regarded as a customer of the group.  The same could not be said to be true in the present case where Chow was a complete stranger to the Trust ([224]-[230]).

18.  The Judge therefore concluded that there were sufficiently good reasons not to enforce Clause 17 against the Plaintiffs.

19.  The Judge also entered summary Judgment against the Trustees in relation to Action (1), granting the Plaintiffs disclosure of information on the transfer of the Shares, an inventory and account of the Trust with supporting documents.  The Judge considered that the Trustees had failed to discharge their burden to show an arguable defence under Order 28, rule 4 of the RHC.

Proposed Grounds of Appeal

20.  The Trustees’ proposed grounds of appeal had been revised on 20 November 2025 following the directions of this Court.  There is a large measure of overlap in the proposed grounds of appeal against the refusal of stay in Action (1) and Action (2) as well as in the appeal against the Judgment.  Chow has put forward four proposed grounds of appeal.   Such grounds also overlap with those advanced by the Trustees.  The proposed grounds of appeal are summarized as follows.

21.  In respect of the stay applications, the Defendants challenge the Judge’s approach in relation to Issue 8, ie, faced with different conclusions on whether the Hong Kong proceedings should be stayed (as between the Trustees and the Plaintiffs and as between Chow and the Plaintiffs), how the court exercised its discretion when the Plaintiffs’ claims against Chow were taken into consideration (Decision, [206]-[220]).  The Defendants argue that :

(1)     The Judge erred in adopting the wrong questions or approach: (a) the EJC should have been determinative; (b) the claims against Chow are not a basis for departing from the EJC; (c) Lammas Global was wrongly distinguished; and (d) the Defendants are not sued as of right, which in any event is irrelevant;

(2)     The Judge gave insufficient weight to the EJC: (a) Chow can rely on the EJC; and (b) Hong Kong court should not exercise supervisory power over the Trust in light of the EJC;

(3)     The claims against Chow and the Trustees are not separate and distinct.  The claims against the former are derivative in nature and cannot be made in the absence of the Trustees. 

22.  In respect of the Judgment, in addition to the arguments at para 21(1) above, the Trustees contend that (a) the Judge erred in granting summary judgment against them when Chow is not party to Action (1); (b) it is wrong as a matter of law for the court to grant the Plaintiffs’ discovery application when it had held that the EJC was effective as between the parties to Action (1) and there was no good reason to depart from it; (c) the 2^nd Plaintiff should not be entitled to disclosure because of the Trustees’ position that she is not one of the beneficiaries of the Trust; (d) it was wrong to penalize the Trustees for “keeping their powder dry”; and (e) the disclosure obligations are framed too widely and inapt for summary judgment procedure.

Relevant Legal Principles

23.  The principles governing applications for leave to appeal are well established.  The applicant needs to show that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard: section 14AA(4) of the High Court Ordinance, Cap 4.  A reasonable prospect of success means an appeal with prospects that are more than fanciful, without having to be probable: SMSE v KL [2009] 4 HKLRD 125, [17].  To meet the reasonable prospect of success threshold, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed: Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515, [19]. 

24.  In an application for extension of time to appeal (including an application for extending time to apply for leave to appeal), the court takes into account the length of the delay, the reasons for the delay, the chances of success of the intended appeal and the prejudice to the other party if time is extended.  Where delay is inexcusable, the applicant must show a real prospect of success on the merits, not just a reasonable prospect of success: The Hongkong Shanghai Banking Corporation Ltd v Sy Shun Wu & Ors [2018] HKCA 736, [8] and [9].

25.  This Court will not entertain an appeal simply because an applicant wishes to regurgitate arguments already considered below with the hope that this Court may come to a different assessment: Symphony Partners Ltd v Fullerton Bay Investment Ltd[2018] 4 HKLRD 264, [33].

26.  The determination of the appropriateness of competing fora involves an evaluative or balancing exercise.  It is a matter closely analogous to the exercise of a discretion which is pre-eminently for the judge.  An appeal should be rare and the appellate court should be slow to interfere.  The judge’s decision may only be interfered with on appeal where he had misdirected himself on the principles that govern the discretion, or had taken into account irrelevant matters or failed to take into account relevant matters, or where his decision is plainly wrong.  This is an area in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge.  The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum: China Medical Technologies Inc v Paul, Weiss, Rifkind, Wharton & Garrison LLP [2020] HKCFI 567 at para 3; also Bright Shipping Ltd v Changhong Group (HK) Ltd (No 2), CA, [2019] 5 HKLRD 30, [4]-[11].

Discussion

27.  Having considered the papers before the Court, we take the view that it is appropriate to determine these applications without a hearing and on the basis of written submissions only pursuant to Order 59, rule 2A(5) and rule 14A(1) of the RHC.

28.  In these matters, the Trustees are represented by Mr Todd KC and Mr Chan.  Chow is represented by Ms Eu SC and Ms Chak.  The Plaintiffs are represented by Mr Khaw SC and Mr Wong.

The approach taken by the Judge on Issue 8

29.  Essentially, the Defendants argue that the EJC is determinative on the stay applications, and the Judge was wrong to have approached Issue 8 on the basis of Questions (1) and (2) after having come to different conclusions on the merits of the stay applications between the Trustees and the Plaintiff (without considering the claims against Chow) and between Chow and the Plaintiff.

30.  To being with, as pointed out by Mr Khaw, the Defendants do not dispute the legal principles relied upon by the Judge, namely :

(1)     The court is not bound by an EJC but has a discretion to decide whether or not to grant a stay of proceedings: Decision, [126]-[128];

(2)     Given the distinction between trust and contract, the weight to be given to an EJC in a trust deed is less than that given to such a clause in a contract.  In the balancing exercise, the strength of the argument needed to outweigh the effect of an EJC in a trust deed is less than that required where a contracting party seeks to avoid it: Decision, [67]-[75] and [128], applying Crociani and A v B;

(3)     In considering whether to enforce an EJC in a dispute which involves both the parties to the EJC and a party who is not subject to the clause but also sued on the same or similar facts, the issue of multiplicity of proceedings should lie at the forefront of the court’s mind, and great weight should generally be given to it.  In most cases, the interests of justice are best served by the submission of the whole dispute to a single tribunal which is best fitted to make a reliable, comprehensive judgment on all the matters in issue: Decision, [209]-[215], applying, inter alia, Donohue v Armco Inc, HL, [2002] 1 All ER 749, [34].

31.  In light of the above principles, there is no merit in any blanket assertion that Clause 17 is determinative of the stay applications.

32.  It is contended by the Defendants that Question (1) is a non-issue as the claim against Chow is a derivative claim and cannot be brought independently against Chow without joining the Trustees.  Therefore, there are no parallel proceedings before the court.

33.  As to Question (2), it is argued that the Judge was wrong to consider which forum was better placed to hear the proceedings. Ms Eu also submits that by considering Question (2) the court below had contradicted its earlier ruling that FNC considerations were generally irrelevant in the exercise of the court’s discretion (Decision, [133] and [136]). 

34.  In respect of the challenge to Question (1), we do not agree that Action (2) is a derivative action.  Rather, it is an action which the Plaintiffs (as beneficiaries of the Trust) are entitled to bring against the alleged wrongdoers (the Trustees and Chow) who had deprived the Trust of a substantial part of its assets: see Lewin on Trusts, 20^th edn, vol II,[41-002] and first supplement, [47-001].  If Chow cannot rely on Clause 17 (the contrary argument will be dealt with below) and the Plaintiffs are entitled to sue him in Hong Kong, then there is a potential issue of parallel proceedings if their claims against the Trustees are to be stayed. 

35.  As regards the criticisms of Question (2), it is plain from the Decision, [216]-[220] (see also Leave Decision, [28]), that the Judge took into account all the relevant circumstances of the case in considering “which option would better serve the interests of justice in this case” (Decision, [215]).  Such circumstances included (a) the fact that the Trustees and Chow were Hong Kong residents and served within this jurisdiction; (b) the Plaintiffs’ right to commence proceedings against them was not to be deprived lightly; (c) Hong Kong court was clearly the more appropriate forum for the trial of the proceedings; (d) Chow could not legitimately take advantage of the EJC; (e) as far as the Trustees were concerned, the issue was whether there was sufficiently good reason not to give effect to the EJC; (f) there was a genuine need to avoid parallel proceedings; (g) Hong Kong was the better option by reason of (i) the Plaintiff should be allowed to sue Chow in Hong Kong, (ii) the Trustees were sued as of right and (iii) Hong Kong was the more appropriate jurisdiction from FNC perspective; and (h) the court had an inherent jurisdiction to supervise the administration of the Trust.

36.  We are unable to see any valid criticism over the approach of the Judge based on Question (2).

37.  Also, we do not think that the Judge was inconsistent in her approach.  The Judge approached Issue 8 with a broader enquiry than that under Issue 3 where it was held that FNC considerations were not relevant in considering the question whether the Plaintiffs should adhere to Clause 17 as against the Trustees.  This was explained in the Leave Decision, [26]-[27]. 

38.  The challenge to the Judge’s approach on Issue 8 is the focus of the intended appeals on the stay applications.  We turn to consider the criticisms over various elements of the Judge’s findings. 

Whether the Trustees and Chow are sued as of right

39.  Mr Todd submits that the Trustees were not sued as of right in Hong Kong and that the Plaintiffs had no right to sue them in Hong Kong in breach of the EJC.

40.  We agree with Mr Khaw that the Trustees’ contention is flawed.  It is trite that a jurisdiction agreement does not confer jurisdiction on the court and only service confers jurisdiction on the court: see Private International Law in English Courts, 2^nd edn, at p.148.  Given that all the Defendants were properly served in Hong Kong, the Judge was correct to consider that the Plaintiffs had commenced these proceedings against them as of right.

Whether Chow can rely on Clause 17

41.  Ms Eu argues that the Judge erred in considering that Chow was a stranger to the trust.  As trustee de son tort or a constructive trustee, Chow is more than merely a stranger, relying on Mara v Browne [1896] 1 Ch 199 at p.209 and Equity and Trusts, Alastair Hudson, 10^th edn, pp.578-579.  In any event, based on the relationship between Chow and one of the settlors of the Trust (he is the son of Mr Chow Ying Bor), Chow is more than merely a stranger to the Trust.

42.  In response, Mr Khaw submits that this is just a rehash of arguments put forward before the court below and rejected (Decision, [198]-[202]).  The authorities relied on by Chow do not assist as they clearly drew a distinction between trustee do son tort and persons guilty of fraudulent or dishonest misconduct (see Mara at pp.209-210; and Hudson at [12.8]-[12.9]).  The Judge was plainly right to consider Chow as a stranger to the Trust and he could not rely on Clause 17 as against the Plaintiffs.

43.  We agree with Mr Khaw.  Further, the issue here had been explained with admirable clarity by the Judge in the Leave Decision, [33]-[45], with which we also agree.  There is no allegation that Chow had intermeddled with the Trust or did any act characteristic of a trustee vis-à-vis the Trust.  He is not a trustee de son tort.  Any duty imposed on Chow as a constructive trustee would be a matter of law.  Such duty would not make him a trustee of the Trust.  It is a form of equitable relief (see Timmerton Co Inc v Equity Trustee Ltd [2015] 1 HKLRD 247, [15]-[16], quoting the dicta of Millet LJ (as he then was) in Paragon Finance Plc v DB Thakerar & Co [1999] 1 All ER 400). 

44.  We also reject the argument that by virtue of personal relationship between Chow and one of the settlors Chow can be said to have a relationship with the Trust.  This proposition needs only be stated to be rejected, and we are surprised that it is advanced without any support by authorities. 

Exercise of discretion by the Judge

45.  Various criticisms are made in respect of the exercise of discretion by the Judge or the weighing exercise on the relevant considerations.  For instance, Mr Todd argues that none of the three factors identified in the Decision, [219] warranted the court exercising its discretion to depart from the EJC.  The Judge ought to have prioritized the promotion of parties’ autonomy and certainty in the administration of the trust, and there was no evidence that the BVI courts were in any way incapable of supervising the Trust.  Similar arguments have also been advanced by Ms Eu.

46.  We do not agree that the Judge erred in the exercise of discretion in deciding whether there were sufficiently good reasons to depart from the EJC.  We consider that the Judge was entitled to take into account the factors mentioned in the Decision in reaching her conclusion.  We do not believe that the Judge had misdirected herself in the exercise, or failed to take into account relevant factors, or is plainly wrong in reaching her conclusion. Matters of weight were for the Judge to decide. 

Exercise of supervisory power over the Trust

47.  Mr Todd contends that the Judge was wrong to hold that Hong Kong court should exercise supervisory power over the Trust (Decision, [220]) which is governed, according to Clause 17, by BVI law. 

48.  In our view, given that the Trustees and Chow (the alleged wrongdoers) are in Hong Kong and the trust assets in question are Hong Kong properties, we fail to see any good reason why the Hong Kong court may not intervene in the matter, and it was legitimate for the court below to take this into consideration in deciding whether sufficiently good reasons existed not to adhere to the EJC.  No authority has been cited to us to the contrary.

Lammas Global

49.  The Defendants argue that the Judge had wrongly distinguished Lammas Global on the basis that Chow was a complete stranger to the Trust (Decision, [224] and [230]).  Further, as the Judge found that the EJC was intended to be of universal application (applying to both friendly and hostile litigation), it would apply to any claim involving breach of trust. Thus, it must have been within the contemplation of the settlors or the draftsman of Clause 17 that any such claim might extend to the person said to have benefited from the breach of trust.

50.  These arguments had been considered and rejected by the Judge (Decision, [221]-[230]).  We do not believe that the Judge had erred in her analysis in relation to Lammas Global.

Summary Judgment

51.  Mr Todd submits that the Judge held (Decision, [154]) that, in relation to Action (2), the EJC would have been given full effect but for the joinder of Chow.  Given that Action (1) does not involve any claim against Chow, the EJC is effective as between all parties in those proceedings. Further, the Originating Summons was framed too widely, giving rise to issues of personal or commercial confidentiality, and is inapt for summary determination. Furthermore, the Judge erred in assuming that the 2^nd Plaintiff was one of the parties entitled to disclosure when it is the Trustees’ case that the 2^nd Plaintiff is not a beneficiary under the Trust and is not entitled to the documents sought.

52.  The summary judgment application was dealt with by the Judge in Decision, [234]-[240].  The contention that Action (2) should be considered on its own is contrary to the stance taken by the Trustees below: see Leave Decision, [67]-[71].  We agree with the Judge that the Trustees are not allowed to blow hot and cold.  In any event, we consider that the Judge was plainly entitled to consider that the claims against the Trustees and Chow were inextricably linked and Actions (1) and (2) should be dealt with together.  It should not be overlooked that the purpose of the discovery action was to find out what had happened to the trust assets and to support the breach of trust claims. 

53.  Further, plainly the Trustees had failed to discharge their burden to show an arguable defence in the face of the summary judgment application.  They must live with the consequences.  The dispute over the scope of discovery could have been ventilated at the hearing below.  There is no reason to entertain it now. 

Conclusion

54.  For the above reasons, we find that none of the proposed grounds of appeal has any reasonable prospect of success.

55.  Mr Todd seeks to rely on the “interests of justice” limb under s.14AA(4)(b) of the High Court Ordinance, Cap 4 for leave to appeal.  It is premised upon the proposition that there is an important point of general importance in a developing area of the law: “When can a binding EJC be depart from?  In particular, is the involvement of a third party a good reason for exonerating the Plaintiffs from their duties under the EJC?”

56.  We are not attracted by the submission.  We agree with Mr Khaw that the answer to the question is very much fact-sensitive.  Further, the lack of merits in these cases is not conducive to advancing the development of the law in this area. 

Disposition

57.  The leave applications of the Trustees and Chow are dismissed.

58.  The Trustees’ application for extension of time to appeal against the Judgment is also dismissed given the absence of any reasonable prospect of success in their intended appeal against the Judgment.

59.  The lack of any reasonable prospect of success in the intended appeals means that the minimum requirement for a stay application is not met: Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.  All stay applications are therefore dismissed.

60.  We order that the costs of the applications of the Trustees and Chow be to the Plaintiff.  We do not agree with the Plaintiff that the circumstances of these cases justify an award of costs on indemnity basis. The Plaintiffs’ costs are assessed summarily at HK$300,000.  Both the costs order and assessment are on nisi basis and shall become absolute 14 days from the date of this Judgment in the absence of any variation application.

61.  Finally, we make an Order under Order 59, rule 2A(8) that no party may request that the various applications for leave to appeal be reconsidered at an oral hearing inter parte. 

[1]  The FNC exercise was dealt with at Decision, [155]-157] and [171]-[197].  The Judge took the view that the FNC considerations for the case against Chow and the Trustees should broadly be the same [157], and if not for Clause 17 the proceedings against the Trustees should not be stayed on FNC grounds [197].