BOLD SHINE INVESTMENT LTD v. TSUI YEE KWAN

HCA 1867/1999 and HCA 1676/2011
(Heard together)

[2022] HKCFI 2764

HCA 1867/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1867 OF 1999

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AND

HCA 1676/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1676 OF 2011

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(Heard Together)

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DECISION

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Introduction

1.  On the 5^th of July 2022, I dismissed the Plaintiff’s application made pursuant to O.39, r.2 of the Rules of High Court (“the Decision”) so that a letter of request shall be issued to the proper judicial authority in the mainland of the People’s Republic of China for the examination of Luo Bing Kun at a prison in the Guangdong province.

2.  That application had been determined by me on the papers and I will not repeat what I stated in my reasons.

3.  Essentially, I considered that there were two issues for me to determine: the first issue being whether or not cross examination was in fact covered by the Arrangement as defined in my decision when the Hong Kong SAR Court was the requesting party (as this goes to whether or not the Court was satisfied that the request would probably be entertained) and the second issue being whether or not the Court’s discretion should be exercised in favour of such a request.

4.  The Plaintiff now seeks leave to appeal.

5.  After the Plaintiff filed its application for leave to appeal, I gave directions to the parties for written submissions to be filed, so that the matter could be determined on the papers.

6.  I have considered the helpful and succinct written submissions filed on behalf of the Plaintiff by Mr Tony Chow and the Defendants’ submissions in reply by Mr Damian Wong.

7.  It is common ground that leave to appeal should be granted if it can be demonstrated that there are reasonable prospects of success meaning that these have to be more than “fanciful” without having to be “probable”: see SMSE v KL [2009] 4 HKLRD 125.

Analysis

8.  On the first issue, it seems to me that the Plaintiff is effectively re-running the arguments before me earlier.

9.  What is or is not allowed under the Arrangement depends on the construction of the said Arrangement. This has been explained in the decision of Au-Yeung J in Huang Yu Hui v Zheng Shizhi [2021] HKCFI 3362 at paragraphs 24 to 37 and also by me at paragraphs 23 to 27 of the Decision.

10.  I consider that it is not reasonably arguable that there is reason to suppose that a People’s Court of the Mainland would be receptive to the request made by the Plaintiff through the Hong Kong SAR Court.

11.  In any event, on the second issue, this involves an appeal against an exercise of discretion. I have already stated the matters which I considered to be relevant at paragraphs 29 to 44 of the Decision and I will therefore not repeat what I stated there.

12.  Ultimately the issue is whether the Court would be in a more advantageous position to assess Luo’s statement as a hearsay statement on the basis that he was unable, rather than unwilling to make himself available for cross-examination; or whether some form of examination in chief coupled with perhaps at most a diluted and not fully fledged cross-examination would be better.

13.  On the evidence before me I was not satisfied that it was the latter.

14.  Given that this was an exercise of discretion I do not consider that it is reasonably arguable that I exercised my discretion in such a way which would justify appellate intervention.

15.  Finally, it is suggested that I could also grant leave on the basis there are some reasons in the interest of justice why the proposed appeal should be heard, namely to allow the Court of Appeal to decide whether or not the Arrangement should be construed so as to exclude the Hong Kong SAR Court from requesting for cross examination.

16.  I would respectfully decline such an invitation.

17.  First, that would be a matter for the Court of Appeal if it were so minded to entertain the issue.

18.  Second, given that we are considering an Arrangement which is not governed by Hong Kong law but governed by Mainland Chinese law, it is not entirely clear how a determination by the appellate court would necessarily be binding in future cases. It is likely that in any given case, it would depend on the state of the evidence and in particular expert evidence before that Court. For the reasons I identified at paragraph 11 of the Decision I considered that the expert evidence in this case had much to be left to be desired.

Conclusion on leave to appeal

19.  For those reasons, I will dismiss the application for leave to appeal and order that the Defendants have the costs of the application to be assessed on a gross sum basis.

20.  Having had regard to the statements and bearing in mind this is a broad-brush exercise, I will order those costs to be in the sum of $60,000 to be paid within 28 days.

Other Matters

21.  I note from paragraph 15 of the skeleton of the Plaintiff that they are also seeking leave in so far as it is necessary for them to do so in order rely on the affirmation exhibiting the so-called expert opinion.

22.  I agree that reading paragraphs 10 and 48 of my Decision it is not entirely clear what I had decided. For the avoidance of doubt, as it is clear from the Decision, I have taken into consideration the opinion but did not think that it advanced the Plaintiff’s position further.  Formal leave was thus given although as the substantive application failed and the evidence did not take the matter further, I ordered costs of that application to also be borne by the Plaintiff as part of the overall costs.

Gross Sum Assessment of the Summons

23.  Having considered the gross sum assessment schedules, the observations made by the Plaintiff, and bearing in mind this is a broad-brush exercise and that I am looking at this on a party and party basis, I consider that while counsel fees are very reasonable, the time spent by the solicitors is a perhaps on the high side.  All in all, I assess those costs at HK$340,000 to be paid within 28 days.