BARCO INVESTMENTS LTD v. WONG YAN HO (also known as GEOFFREY WONG YAN HO) AND OTHERS

HCA 1184/2022

[2026] HKCFI 923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1184 OF 2022

____________

____________

_______________

D E C I S I O N

_______________

The principles

1.  The applicable principles regarding applications under O.20 r.11 were summarised by G Lam J in Lo Yuen Chong v IWS Environmental Technologies Limited [2021] HKCA 89 at [17] to [19]. The power to amend an order extends only to the correction of errors in expressing the court’s intention. The error must be an error in expressing the manifest intention of the court.

2.  The court also has an inherent power to clarify its original order if the court’s intention appearing from the body of the judgment is manifest, and this can be done even after the order has been sealed, in the absence of any prejudice to the other party: Man Ping Nam & another v Man Fong Hang (No. 2) (2007) 10 HKCFAR 140 at [10], [11] (Ribeiro PJ).

3.  The grant of relief under the slip rule is discretionary. If something has intervened which would render it inexpedient or inequitable to permit rectification, the court will refuse relief. See MKKWH v RKSH [2018] HKCA 395 at [77] (Lam VP).

Whether manifest intention to continue injunction against 5th Defendant

4.  The 5th Defendant opposes the slip rule application to amend the order of 14th October 2022, which did not contain any order to continue the ex parte injunction of 6th October 2022 against him, on the grounds that:

4.1  the proposed amendments do not reflect the manifest intention of the court; and

4.2  the proceedings are already over and the amendment would serve no purpose.

5.  Mr Cristian Tsang, counsel for the 5th Defendant, submitted that I had refused to continue the ex parte injunction because he had not been served, referring to various parts of the transcript of the hearing of 14th October 2022. I have re-read those parts but do not agree that this describes what happened. What the transcript reflects is that:

5.1  I asked for the documents including the injunction to be re‑served on the 5th Defendant, and did not accept that service could be dispensed with as the Plaintiff had submitted;

5.2  I had then been about to pronounce expressly in relation to the application for continuation, but Mr Benjamin Yu SC, who was then counsel for the Plaintiff, then raised the issue of the date to which the continuation application should be adjourned, and he submitted that it should be adjourned sine die rather than to a specific date, in view of the fact that service now had to be re-effected – Mr Yu indicated that attempts would be made to agree directions with the 5th Defendant, and if this was unsuccessful then to return to court; he asked that a date should not be fixed just yet so as to save costs.

6.  I agree with Mr Zenith Chan, counsel for the Plaintiff, that the ensuing discussions about (1) continuation of the injunction and (2) extension of time for the 5th Defendant to give discovery (as ordered in the injunction order) would only have made sense on the basis that there was to be some sort of continuation of the injunction against the 5th Defendant.

7.  I further agree with Mr Chan’s submission that since the Plaintiff had applied for continuation of the injunction and that this was expressly mentioned during the exchanges with counsel, had the application been refused altogether, I would have said so and given reasons for the refusal. I do not agree that the Plaintiff’s failure to effect service on the 5th Defendant would have been a reason not to continue the injunction on an ex parte basis pending service – it is common to order that an ex parte order continue pending service on a defendant.

8.  As for the amendment made by my clerk to the draft order submitted on 20th October 2022, this would have been on the basis that there was no express pronouncement at the hearing as to the grant of a continuation of the injunction. It does not take the matter further as to what the court’s manifest intention was (although it may be said that the Plaintiff’s failure to take the matter further at the time reflects, to some extent, the Plaintiff’s own understanding that there was no open-ended continuation of the injunction).

9.  However, that is not the end of the matter.

10.  Mr Tsang submitted that it would have been improbable for an order to be made to continue the injunction indefinitely. Therefore, he says, the Plaintiff fails to show that the manifest intention of the court was that an order was to be made for continuation of the injunction “until further order of the court”.

11.  In this regard, I would note that senior counsel for the Plaintiff had indicated that upon serving the 5th Defendant, efforts would be made to agree directions with the 5th Defendant, and if these failed, then the Plaintiff would restore the matter for further directions; Mr Yu asked that a date not be fixed yet so as to save costs. It was in these circumstances that I did not immediately fix a date for further hearing of the Plaintiff’s continuation summons; originally, I had indicated that an adjournment of one or two weeks would be given. It was neither the Plaintiff’s nor the court’s intention for any continuation of the injunction to continue indefinitely and without the 5th Defendant not having the chance to be heard in relation to the injunction which had made against him on an ex parte basis. However, there was then no further discussion as to how the duration of the continuation would be defined.

12.  Mr Chan submitted that the manifest intention of the court was for the ex parte injunction to be continued against the 5th Defendant pending determination of the continuation summons “if and when it was revived for substantive argument”,[1] and that this is the effect of the order currently being sought in the slip rule application. However, as the transcript shows, it was neither the Plaintiff’s nor the court’s intention for any continuation of the injunction to continue indefinitely, at the whim of the Plaintiff. I do not agree that an order for continuation would have been made in such terms.

13.  I therefore agree that the Plaintiff fails to show that the manifest intention of the court was to continue the injunction “until further order”.

Discretionary considerations

14.  In any event, I would have declined to exercise my discretion to amend the order. As things transpired, the Plaintiff failed to return to court in relation to its application against the 5th Defendant for continuation of the injunction. It proceeded with the action against some of the other defendants and obtained judgment against the 1st Defendant. It did not proceed to obtain judgment against the 5th Defendant. It then applied to release the sum of $10m paid into court by way of fortification of its cross-undertaking in damages, and at the same time, applied to discharge the injunction against the 5th Defendant.

15.  In support of this application, the Plaintiff’s director Chow Man Ki Kelly made an affirmation on 17th July 2025 stating as follows:

“ The upshot of the above is that these proceedings are effectively at an end. The claims have been discontinued by consent as against D6 to D9, whilst D2 to D5 were never validly served with the proceedings to begin with. As a practical matter, all that remains to be done now is enforcement of the judgment against D1…”

16.  At the hearing today, Mr Chan pointed out that it was incorrect to have said that the 5th Defendant was not validly served, as there was in fact an affirmation of service attesting to such service.

17.  Leaving aside this point, the Plaintiff’s position in that affirmation is that the proceedings are at an end. If so, the Plaintiff’s slip rule application would serve no real purpose, and should not be granted.

18.  At the hearing today, Mr Chan said that in fact, it was the Plaintiff’s intention to seek to proceed with the action against the 5th Defendant, and that this is the reason why the current (slip rule) application is being made. However, this was not mentioned in the Plaintiff’s evidence filed in support of the slip rule application. It was not even mentioned in the Plaintiff’s skeleton. Mr Chan applied for leave to file further evidence on this point.

19.  If the Plaintiff’s position is that it seeks to proceed in its claim against the 5th Defendant, it is difficult to see why it did not do so earlier, given that it had already (as it says) properly served the 5th Defendant with the proceedings back in October 2022. Instead, it has applied to withdraw the $10m paid into court, and also to discharge the injunction against the 5th Defendant. No explanation has been given as to why the Plaintiff chose to conduct the proceedings in this way, or as to why the Plaintiff seeks to change its mind now. The Plaintiff says that it had indicated in the hearing before DHCJ MK Liu in September 2025 (in relation to the application to release the $10m) that it sought to change its position, but no attempt has been made since that time to clarify its stance, whether in the release application or this slip rule application. There are no grounds to ask the court to exercise its indulgence to now allow the Plaintiff, after its slip rule application has been heard, to file evidence to change its earlier stance so as to support the making of the application, and I decline to grant leave to do so. In any event, the grant of such leave would be futile, in the light of the fact that I am not satisfied that the Plaintiff has shown that the manifest intention of the court was to make the order sought by the Plaintiff.

20.  I therefore dismiss the Plaintiff’s summons of 14th October 2025. I will now hear the parties as to costs.