ACCENT DELIGHT INTERNATIONAL LTD AND ANOTHER v. YVES BOUVIER AND ANOTHER

HCMP 573/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 573 OF 2015

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REASONS FOR DECISION

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1. Following the decision dated 20 March 2015 (and the reasons for decision handed down on 26 March 2015), the defendants took out applications:

(a)  for leave to appeal against the said decision (dismissing their application to stay the ex parte disclosure order, and granting the bankers’ disclosure order (collectively “the above disclosure orders”));

(b)  for an interim stay of execution of the above disclosure orders pending their intended appeal against the same.

2. Further, by the 27 March 2015 hearing, the Singapore court has (earlier on 23 March) ordered the Singapore disclosure orders to be stayed pending the determination of the defendants’ application to discharge the worldwide freezing and related disclosure orders made there (“the Singapore orders”) (scheduled to be heard on 6 and 7 April 2015 (“the Singapore hearing”)).  This change of circumstance was relied on heavily by the defendants in support of their stay application before me.

3. Further to the applications mentioned in para 1 above, the defendants also took out an application to stay the above disclosure orders pending the determination of their application to discharge the ex parte injunction (“the discharge application”).

4. It cannot be (and was not) disputed that the Hong Kong proceedings were commenced (and the orders obtained) in aid of the Singapore proceedings (which were described as the “lead” jurisdiction).

5. In such circumstances, there is no valid reason to refuse the defendants’ application to stay the above disclosure orders until the determination of the Singapore hearing.  Accordingly, I made an order staying the same up to and including 4:00pm on 10 April 2015 or until further order (whichever is the earlier).

6. As regards the application for leave to appeal (para 1(a) above), leading counsel indicated at the 27 March 2015 hearing the grounds of the intended appeal would be along the lines of the defendants’ skeleton argument dated 26 March 2015 (she also indicated that, if the ex parte disclosure order was stayed pending the discharge application, leave to appeal against that order would not be sought).

7. In gist, the principal grounds in support of the leave application were that:

(1)  it was wrong not to adjourn the 20 March 2015 hearing (instead of granting the above disclosure orders) because there was no urgency for the above disclosure orders;

(2)  difficult points of mixed law and fact were involved (for example, whether the plaintiffs’ claim is proprietary or personal; whether the privilege against self-incrimination is absolute and can only be abrogated by statute);

(3)  there was a failure to differentiate the legal principles governing the bankers’ disclosure order (as opposed to those governing the ex parte disclosure order);

(4)  there was insufficient evidential basis for seeking or granting the bankers’ disclosure order;

(5)  the ex parte injunction itself was already sufficient to preserve the assets covered by it;

(6)  disclosure once made is irreversible.

8. By the 27 March 2015 hearing, reasons for decision relating to the above disclosure orders have already been handed down (2:30 pm on 26 March 2015).  The reasons should thus have been known to the defendants (their skeleton argument was fax transmitted at about 6:30 pm on 26 March 2015).  Despite this, they have not identified (whether in writing or verbally) where the said reasons for decision have failed to address the points raised by their former counsel (set out in the skeleton submissions for the 20 March 2015 hearing).

9. As regards para 7(1) above, the adjournment sought at the 20 March 2015 hearing (which appears at para 9 of the defendants’ said skeleton submissions) have been considered, and in effect been rejected.  The reasons for the same again already appear in the reasons for decision of 26 March 2015 and will not be repeated.

10. As regards the part of para 7(2) above concerning the privilege against self-incrimination, I further agree with the plaintiffs such claim for the privilege has not been made by the defendants (bearing in mind they are legally represented in the Monaco investigation, to which the privilege allegedly should attach).