KOIDE KEITA AND ANOTHER v. KOIDE EIJIRO AND OTHERS

HCCW 691/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) NO. 691 OF 2009

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D E C I S I O N

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1.  I have before me an application by the 1^st to 4^th Respondents for leave to appeal my decision of July 2010. Mr Maurellet who appeared for the 1^st to 4^th Respondents appended to his skeleton argument draft grounds of appeal contending that I did not properly exercise my discretion.

2.  Section 14AA(4) of the High Court Ordinance provides that leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

3.  It is agreed that the correct approach to assessing whether or not leave to appeal should be granted is as set out in paragraphs 17 to 19 the decision of Chu J in Wynn Resorts (Macau) SA v Mong Henry [2009] 5 HKC 515.  In the context of an appeal against the exercise of a discretion this means that I have to be satisfied that there is some merit in the argument that I wrongfully exercised that discretion.  It is well established that the Court of Appeal will only interfere in the exercise of a discretion if it is satisfied the judge exercised his discretion wrongly in that he has gone plainly wrong or made some mistake as to the evidence or as the law: Hadmor Productions Ltd. v Hamilton [1983] 1 AC 191 (HL) 220B-E; Juicy Couture Inc. v Bella International Ltd. (unreported) CACV19/2010, 23 March 2010, per Rogers VP at paragraph 7.

4.  Mr Maurellet does not argue that I have gone plainly wrong or misunderstood the law.  He argues that I failed to deal properly with the 5 matters identified in the draft Notice of Appeal.  The complaints in the draft Notice of Appeal in my view go to the weight that I gave to particular matters, which the 1^st to 4^th Respondents argue support their case.  They are not matters that I overlooked or misunderstood.  The matters were taken into account along with others mentioned in the judgment.  In these circumstances I do not think that the 1^st to 4^th Respondents have demonstrated that there is sufficient merit in their appeal to justify leave being granted I therefore dismiss the application with costs.