PCCW - HKT TELEPHONE LTD AND ANOTHER v. DAVID MATTHEW McDONALD AITKEN AND ANOTHER

FAMV NO. 58 OF 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 58 OF 2008 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 194 OF 2008)

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D E C I S I O N

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Mr Justice Bokhary PJ :

1.  The trial has yet to be held.  On 10 July 2008 Deputy Judge Au granted the plaintiffs interlocutory injunctive relief, but only to a limited extent.  He did however grant wider relief pending an application to the Court of Appeal for wider relief pending an appeal to them for such relief. 

2.  Dissatisfied with limited relief, the plaintiffs appealed to the Court of Appeal for wider relief.  Wider relief pending that appeal was granted by the Court of Appeal (Le Pichon JA and Hartmann J) on 18 July.  On 21 August the Court of Appeal (Tang VP and Stone J, Le Pichon JA dissenting) dismissed the appeal for wider relief.  But they suspended their order for 6 working days, thus leaving in place for that period the wider relief granted on 18 July.  On 29 August they refused to extend such suspension, which expired on that day.  Mrs Justice Le Pichon JA would have been sympathetic to an extension but for the fact that no application to the Court of Appeal for leave to appeal to the Court of Final Appeal for wider relief had been taken out.

3.  Shortly thereafter, on 2 September, such a leave application was taken out.  It was dismissed by the Court of Appeal (Tang VP and Stone J, Le Pichon JA dissenting) on 20 October.

4.  On 30 October the plaintiffs gave notice of intention to apply to the Appeal Committee for leave to appeal to the Court of Final Appeal for wider relief.  Such a leave application was taken out on 7 November.  At the same time the plaintiffs took out a summons returnable before a single Permanent Judge for wider relief pending the leave hearing before the Appeal Committee.  I am now giving my decision on that summons.

5.  The Court of Final Appeal’s inherent jurisdiction in regard to the grant of interlocutory relief and the power of a single Permanent Judge to exercise that jurisdiction has been dealt with in Secretary for Justice v. To Kan Chi and Others (2000) 3 HKCFAR 264, Shanghai Tongji Science & Technology Industrial Co Ltd v. Casil Clearing Ltd (2004) 7 HKCFAR 79 and Joint and Several Liquidators of Kong Wah Holdings Ltd v. Grande Holdings Ltd (2006) 9 HKCFAR 795.  In my judgment, the Court of Final Appeal has inherent jurisdiction in the shape of a discretion to grant interlocutory injunctive relief to preserve the position pending an application for leave to appeal and, if such leave is granted, pending appeal.  And in my judgment that jurisdiction can be exercised by a single Permanent Judge because an order granting such relief comes within s.46(2) of the Court’s statute as an incidental and interim order necessary to prevent prejudice to a party.

6.  It is important not to say anything that might prejudice future steps in this litigation.  So I will say more than this.

7.  As it seems to me, whether or not the plaintiffs ought to be granted leave to appeal to the Court of Final Appeal is a serious question to be determined by the Appeal Committee before which the question of such leave is listed to come on for hearing on 17 December 2008.

8.  Where does the balance of convenience lie?  As it seems to me, it lies, all things considered, in the granting of interim relief.  I order that, subject to any other order in the meantime, the defendants be restrained in the terms of the plaintiffs’ summons of 7 November 2008 until the Appeal Committee determines the application for leave to appeal and, if such leave is granted, decides whether there should be wider relief pending appeal.

9.  Mr Sussex, your summons asks that costs be in the leave application.  What do you say as to costs, Mr McLeish?

[Argument on costs]

10.  Costs are reserved to the Appeal Committee.