GCH (INTERNATIONAL) LTD v. WONG FUNG WAI, HENRY AND OTHERS

HCA 1538/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1538 OF 2012

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1.  On 3 July 2014 I made an order that the appeal by the defendants against Master de Souza’s order made on 11 December 2013 be allowed, the master’s order be set aside and that the plaintiff’s summons filed on 30 July 2013 be dismissed with costs to the defendants.

2.  Reasons for judgment were handed down on 15 July 2014 where I gave reasons for my judgment of 3 July 2014.

3.  By a summons dated 16 July 2014 (“the summons”) the plaintiff applied for leave to appeal against my order made on 3 July 2014 on the grounds as set out in the proposed grounds of appeal annexed to the summons.

4.  After hearing arguments on 28 October 2014, I dismissed the summons with costs to the defendant to be taxed, if not agreed and with a certificate for two counsel.

5.  These are the reasons for my decision of 28 October 2014 dismissing the summons.

6.  It is well settled that leave to appeal will only be granted if the applicant can satisfy the court that there is a reasonable prospect of succeeding in the appeal or that there is some other reason in the interests of justice why the appeal should be heard.

7.  As to what is meant by a reasonable prospect of success, Le Pichon JA said in SMSE v KL [2009] 4 HKLRD 125 at paragraph 17:

“Reasonable prospects of success involves the notion that the prospects of succeeding must be ‘reasonable’ and therefore more than ‘fanciful’, without having to be ‘probable’.”

8.  And as Chu J (as she then was) said in Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515 at paragraph 19:

“To meet the ‘reasonable prospect of success’ test, 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”

9.  It is also well settled that in an appeal against the exercise of a discretion by the court below, an appellate court will only interfere with the exercise of a discretion if it is satisfied that the judge exercised his discretion wrongly in that he has gone plainly wrong or made some mistake as to the evidence or as to the law (Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at 220; Koide Keita and another v Koide Eijiro and others HCCW 691/2009, Harris J 10 August 2010 at paragraph 3).

10.  As I said at paragraph 54 of the Reasons for Judgment, whether or not the court should uplift the stay depends on the circumstances.  Undoubtedly the court has a discretion in the matter to be judicially exercised.  By dismissing the plaintiff’s summons and refusing to uplift the stay, there is no doubt that the court has exercised its discretion in the matter.

11.  At the hearing of the appeal against the master’s order it was the defendants’ case, which I accepted, that the court had a discretion in the matter bearing in mind all the circumstances of the case.  The plaintiff’s case, which I rejected, was that the court’s discretion was limited and that the court could not consider circumstances arising after the making of the settlement agreement.

12.  There are 2 proposed grounds of appeal.

13.  Ground 1 is that I erred in law in allowing notions of justice to override the express provisions in the settlement agreement for the uplifting of the stay.

14.  Ground 2 is that I erred in coming to the view that, taking into account all the circumstances of the case, it was in the interests of justice to refuse the plaintiff’s application for uplifting the stay.  In particular it is said that I failed to take into account or give sufficient consideration to the matters set out in ground 2.  In effect it is said that I exercised my discretion wrongly by failing to take into account or give sufficient consideration to those matters.

15.  Having considered the submissions advanced on behalf of the plaintiff, I was not satisfied that the plaintiff has shown a reasonable prospect of success in respect of either ground 1 or ground 2.

16.  There is also no merit in the assertion that I failed to take into account the matters set out in ground 2.

17.  As to whether I gave sufficient consideration to those matters, that is not a reason for interfering with the exercise of the discretion.  As Mr Wong SC, with Mr Ho, for the defendants, rightly submitted, a judge exercising a discretion is entitled to accord such weight as he thinks fit to the factors taken into account.  An appellate court will not interfere with the judge’s exercise of a discretion simply because it may have attached more or less weight to certain factors.  It is well established that the appellate court has a limited function in an appeal against the exercise of a discretion by the judge.  As Kwan JA said in Sherryknoll Enterprises Ltd and others v Grand Power Ltd and another (HCMP 1895/2012, 1 November 2012) at paragraph 4 of the judgment of the Court of Appeal:

“It is well established that the appeal court has a limited function in an appeal against the exercise of discretion of a judge to grant or refuse an interlocutory injunction. This court does not exercise an independent discretion of its own. It must defer to the judge’s exercise of his discretion and must not interfere merely because it would have exercised the discretion differently. Interference with the judge’s discretion is confined to certain circumstances and they are well established, see Hadmoor Productions Ltd v Hamilton [1983] 1 AC 191 at 220. It is necessary to bear the above considerations in mind in assessing whether the plaintiffs have established that the intended appeal has reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard……”

18.  There is also no other reason in the interests of justice why the appeal should be heard. 

19.  As costs should follow the event, I dismissed the summons with costs to the defendants to be taxed, if not agreed with a certificate for two counsel.