CHUNG PUI TONG v. The Personal Representative CHUNG SAU MIU (also known as CHUNG SAU MUI, or SAU MUI CHUNG), deceased AND OTHERS

HCA 3150/2016

[2019] HKCFI 2966

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3150 OF 2016

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(By Original Writ)

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DECISION

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1.  This is my decision with my brief reasons in support. On 1 November 2019, I made an order (“my Order”) consisting of proprietary tracing and Mareva injunction orders together with disclosure orders in aid thereof in favour of the plaintiff and against the 5^th and 6^th defendants (“the Defendants”).

2.  The Defendants wish to appeal against the disclosure orders which I made under paragraphs 5 and 6 of my Order.  By the application before me this morning, the Defendants ask for leave to appeal to the Courtof Appeal together with a stay of the said disclosure orders pending appeal. Alternatively, if I refuse leave and a stay pending appeal, I am asked to grant an interim stay pending their application to the Court of Appeal.

3.  The grounds of appeal are basically that the said disclosure orders in effect amount to interrogation on the Defendants and in any event they are oppressive.  Mr Chan, counsel for the Defendants, has referred me to various authorities and submits that, in those authorities, the issues all involved specifically identified assets.

4.  In dealing with this application, the first point for me to consider is whether the Defendants have shown a reasonable prospect of success onthe appeal.  In such context, I should also put myself in the position of the Court of Appeal and see whether I myself as the first instance judge had made an error.  My Order was the result of the exercise of my discretion in all the circumstances of the case.  I do not think that there is any authorityto support the proposition that it is a prerequisite in every case that before any court can make a disclosure order in aid of injunctions, there must be specific assets identified in relation to such disclosure order.  Each case must be judged on its own facts.

5.  In granting my Order, I had exercised my discretion in all the circumstances of the case.  Putting on my cap as the Court of Appeal judge, I am not able to say that my decision isso aberrant that it must be set aside on the ground that no reasonable judge regardful of his duty to act judicially could have reached it. It matters not that the Court of Appeal might have reached a different conclusion on the same facts in the exercise of its own discretion.  Hence, I rule that the Defendants have not shown any reasonable prospect of success in the appeal.

6.  I therefore dismiss the application for leave to appeal to the Court of Appeal.  It follows that I must also dismiss the application for a stay of my Order pending appeal. 

7.  The Defendants have indicated that they would like to take the matter further by making an application for leave directly to the Court of Appeal.  Ms Leung for the plaintiff has indicated that she has no objectionto the grant of an interim stay.  Since I am in effect a judge in my own cause, I am prepared to give the Defendants the benefit of any doubt.

8.  In the result, I grant an interim stay of paragraphs 5 and 6 of my Order on condition that the Defendants will apply to the Court of Appeal for leave to appeal within 14 days of today and to pursue the same with due diligence.  In the event that the application to the Court of Appeal is not pursued as above or is dismissed, then the said interim stay will automatically terminate.  For the avoidance of doubt, all other orders and directions contained in my Order save for paragraphs 5 and 6 thereof, which are now subject to the said interim stay, remain effective and should be complied with.

9.  Now, in relation to costs, what I have in mind is to order that costs of today or costs of the application be in the cause of the application tothe Court of Appeal for leave and for stay pending appeal if the application is pursued.  If it is not pursued, then the costs of the application be to the plaintiff, to be taxed and paid forthwith.

(Discussion re costs)

10.  So I just repeat my costs order.  It will be costs in the cause of the application to the Court of Appeal for leave to appeal and for stay pending appeal if the application is pursued. 

(Clarification re wording of costs order)

11.  So the second part of the costs order is : if the application for leave to appeal is not pursued or ifit is dismissed by the Court of Appeal, then the costs of this application beto the plaintiff, to be summarily assessed and paid forthwith, andI summarilyassess the costs of the plaintiff to be in the sum of $135,000.