RHONDA JEANINE POHN v. MAC RICHARD POHN AND OTHERS

HCMP 941/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 941 OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 1381 OF 2010)

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JUDGMENT
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Hon Lam VP (giving the Judgment of the Court):

1.  This is an application for leave to appeal against the decision of Louis Chan J on 12 March 2015. By that decision, the learned judge refused to discharge or vary an injunction granted in favour of the Plaintiff. In his decision of 12 March 2015, the judge set out the circumstances leading to the grant of that injunction. It should be noted that the injunction is granted in respect of a proprietary claim. The Plaintiff is the mother of the 1^st Defendant and the claim is in respect of the estate of the deceased husband of the Plaintiff, who was also the father of the 1^st Defendant. The injunction was granted by DHCJ Mayo on 6 November 2012 at a time when the 1^st Defendant as well as the other defendants were represented by lawyers and it was granted with their consent.

2.  The trial of the action is scheduled to commence on 27 May 2015.

3.  The judge refused to discharge or vary the injunction primarily for the reason that he was not satisfied that the 1^st Defendant has not explained what had happened to the US$1.3 million which he had previously withdrawn from the bank account of the 2^nd Defendant before the grant of the injunction despite ample opportunity given to him to do so.  In particular, when the application first came before DHCJ Cooney SC on 27 January 2015, the hearing was adjourned to give the 1^st Defendant another chance to file further affidavit to set out his financial circumstances and how they had changed.  Yet, in his affidavit of 16 February 2015, he did not give any account for the US$1.3 million.

4.  The judge was of the view that the 1^st Defendant did not give a full and frank disclosure of his means.

5.  Bearing in mind that the injunction is proprietary in nature, the judge did not consider it right to grant any variation when the court was not satisfied that the 1^st Defendant had no other assets available to meet his needs, including the need to have fund to pay legal expenses. 

6.  This decision is interlocutory in nature.  The 1^st Defendant applied for leave to appeal against that decision.  The judge refused leave on 2 April 2015. 

7.  The 1^st Defendant now seeks leave to appeal from this court.

8.  The refusal to vary or discharge the injunction was an exercise of discretion.   This court will only interfere with an exercise of discretion in the limited circumstances set out by Lord Diplock in Hadmor Productions Ltd v Hamilton [1983] 1 AC 191 at p.220B-F, see also the recent judgment of the Court of Final Appeal in SPH v SA [2014] 3 HKLRD 497 at paragraph 65.

9.  The judge has carefully explained in his judgment why he was not satisfied with the disclosure of means by the 1^st Defendant and why this was important in the context of this application.  We are satisfied that in so holding the judge acted in accordance with settled principles of law in respect of variation of proprietary injunctions, see MSR Capital Ltd v KTH Recovery Fund [2005] 1 HKC 371; Liu Xian Feng Sam v Liu Bo [2006] 4 HKLRD 33; Wharf Ltd v Lau Yuen How [2010] 1 HKLRD 783.

10.  There is no basis for suggesting that the judge’s exercise of discretion was wrong in principle.  Nor can we see any basis to suggest that the judge failed to take relevant consideration into account.  On the contrary, as far as we can see, the judge was plainly right in refusing the application.

11.  For these reasons we do not think the intended appeal has any reasonable prospect of success.  There is no other reason why leave should be granted in the interest of justice.  We refuse to grant leave.

12.  We are of the view that the application for leave is totally without merit and we make an order pursuant to Order 59 rule 2A(8) of the Rules of High Court that no party may request this determination to be reconsidered at an oral hearing inter partes.

13.  We also order the 1^st Defendant to pay the costs of the Plaintiff in the present proceedings.  Having regard to reasonable time spent on the statement submitted by counsel for the Plaintiff and in the absence of a costs statement from the solicitors for the Plaintiff, we provisionally fix such costs at $20,000.   Parties may put in written submissions (not more than 3 pages) within 7 days if they disagree with that provisional assessment.  In that event, we would deal with those submissions on paper.