EXCELLENT INVESTMENT (GROUP) LTD (IN LIQUIDATION) v. SIN YUK LING

HCCW 294/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

COMPANIES (WINDING-UP) PROCEEDINGS NO. 294 OF 2012

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D E C I S I O N

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1.  This is the JSL[1]’ application for leave to appeal against the decision on costs dated 3 August 2016 (Decision).

2.  I am unable to agree that there is a reasonable prospect of success in the intended appeal, bearing in mind especially the fact that the JSL are seeking to challenge an exercise of discretion.  I have also been asked by Mr Chong, appearing for Sin, to have regard to Ho Yuen Ki Winnie v Ho Hung Sun Stanley, unrep, HCA 391/2006, 25 May 2009. 

3.  I propose to deal succinctly with the 3 proposed grounds of appeal.  To begin, there appears to be a criticism that the court had adopted a chronology originated from Sin which “contained a number of misleading factual errors”.  Ms Cheung, appearing for the JSL, has disavowed any criticism of the court adopting, with modifications, a chronology provided by one of the parties.  The court does not blindly adopt the submissions or material before it.  If there were errors in the chronology in the Decision, they belong to the court. 

4.  However, I do not agree that there were errors in the chronology.  The “errors” are in fact the rival contentions of the JSL as to how the facts should be understood.  There is no challenge to the approach taken by the court, namely, a reasonably broad brush one (Decision, §8).  The “rival contentions” ignore, inter alia, what happened during the hearing on 15 October 2014 (Decision, p.5) and the outcome of the hearing on 21 April 2015 (Decision, p.6).  Further, it is clear from the Decision that the court did not agree with the S Summons and that was reflected in the costs order.  I am unable to see why the court’s findings of facts were “erroneous and lacked full consideration of the relevant facts”.  I do not agree that the 1^st ground of appeal is reasonably arguable.

5.  With respect, the 2^nd ground of appeal, which seeks to argue that no costs should be awarded against the JSL because they were not made a party to the proceedings, is disingenuous.  As recorded in para 4 of the Decision, Sin’s position that the costs should be borne by the JSL was made clear at the beginning of the hearing, and no point was taken by the JSL during the hearing.  Further, the JSL were asked by the court at the last hearing to address the legal position whether they are entitled to take issue on that matter on appeal, having failed to do so at the hearing.  No argument was advanced in the written submissions of the JSL filed for this hearing.  However, at 9:31 am this morning a note in reply was served on the court by way of facsimile.  I have to say that there is nothing in the note which could not have been set out in JSL’s written submissions.  The note does not address the legal position mentioned above.

6.  Furthermore, it is unreal to suggest that the JSL were somehow surprised by an application for costs against them because: (a) throughout the protracted process in resolving the proceedings in question and the costs issue, their conduct was much the focus of attention; and (b) the only other alternative is to have the costs borne by the Company, and as Ms Cheung has accepted, such a costs order would have to be paid by Sin ultimately.

7.  The 3^rd ground of appeal seeks to challenge the exercise of discretion to award costs against the JSL.  Points (a) and (f) were not taken before this court.  Points (b) to (e) seek to re-argue the case. 

8.  In the premises, this application is dismissed with costs.