BANK OF CHINA (HONG KONG) LTD v. WONG LEI KWAN JOANNE

HCA665/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 665 OF 2009

----------------------

----------------------

--------------------------

J U D G M E N T

------------------------

1.  After the decision of the Court of Appeal on 9 March 2009 it would just be a matter of time that the injunctions in HCA4517 & 4518 of 2003, HCA465 of 2004 will be set aside.  I am of the view that it is not unreasonable for the Plaintiff to come to the court to seek protective orders if the Plaintiff at the same time is willing to forego the injunctions granted in the old proceedings.

2.  Having heard from Miss Cheung, I understand that the Plaintiff is willing to have the injunctions in the old actions to be set aside at the same time when the injunctions is granted in the new action.

3.  So the question is whether I am satisfied there is a risk of dissipation if there is no injunction in place.  Although there is no summons before me for the discharge of the injunction in the old action, bearing in mind the background to the matter and having regard to the fact that both parties are before me, and Mr Chu has not been able to point out that any prejudice would be suffered by the Defendant as a result of the discharge of the injunctions in the old actions, I think it is appropriate that this court should consider the matter on the basis that if this court is minded to grant an injunction in the new action, this court can and should at the same time discharge the old injunctions.

4.  With regard to whether injunction should be granted in the new action, I have to examine the matter as it stands, and I should apply the test set out by Lawton LJ in the case of Third Chandris Corporation v Unimarine [1979] 1 QB 645 at 671, where his Lordship said the court should ask, like a prudent, sensible commercial man whether there are facts from which one can infer that there is a danger of default if assets are removed from the jurisdiction.

5.  Having regard to the history of the matter, and I am not just looking at the matter solely by reason of the fact that the Defendant is outside jurisdiction, I take into account the nature of the claims of the Plaintiff, the strength of the claims and the fact that the Defendant is not currently willing to come here to deal with the matter notwithstanding that in the guarantee there is a provision which said that the matter is to be litigated in Hong Kong and is to be governed by Hong Kong law, I am satisfied that this is a case where, if an application is properly made, the court can grant leave for a concurrent writ to be issued and that there could be leave to serve outside jurisdiction under Order 11 Rule 1 subparagraph (d)(i) and (iv).

6.  Examining the matter from that angle, applying the test of Lawton LJ, I can see there is a real risk that if no injunction is in place, the Defendant will remove assets out of the jurisdiction with the result that the Plaintiff will be prejudiced in terms of the enforcement of whatever judgment the Plaintiff may obtain eventually.

7.  I am therefore satisfied that there is a basis for this court to grant a Mareva injunction to prevent that, and I am going to make such an order.  At the same time I will discharge the injunctions in the old actions.

8.  As regards the application for service outside jurisdiction and the issue of concurrent writ, that should proceed in the usual manner by application to the Master.  Of course, as I have said, I am satisfied that there are grounds on which relief can be granted, but the exact mode of service is a matter to be considered by the Master and I am not going to deal with it in the context of an urgent hearing.