XCHRX KOREA LIFE INSURANCE CO., LTD AND ANOTHER v. MORGAN GUARANTY TRUST CO. OF NEW YORK

HCMP4855/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.4855 OF 2000

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J U D G M E N T

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1. This is an appeal against Master Cannon's decision made on 1 November 2000, whereby she had dismissed Mr Chang Hyun Chi's summons seeking to set aside the earlier Order, dated 22 September 2000, directing him to appear and give evidence before an Examiner.

2. Mr Chang Hyun Chi, a permanent resident of Hong Kong, is one of the important witnesses in a series of civil disputes involving J.P. Morgan and some Korean Companies. The actions had commenced in the United States of America. Pursuant to a Request for Judicial Assistance taken out by the US Court in June 2000, Master Cannon had ordered Mr Chi to appear before the Examiner in Hong Kong on 6 November 2000, to be orally examined on oath for the US proceedings. The order was served on Mr Chi in Hong Kong on 15 October 2000. Arrangements had been made for US lawyers to travel to Hong Kong for the proposed examination.

3. Having failed to secure the consent from the plaintiffs' legal representatives for an adjournment for the examination, Mr Chi's solicitors took out a summons on 27 October 2000 seeking, inter alia, a court order to adjourn the examination. Master Cannon heard the application on 1 November 2000 and dismissed the summons. Hence, Mr Chi appealed to this court against the Master's decision.

4. In support of his case, Mr Chi had filed an affidavit dated 2 November 2000. He explained why he required an adjournment in the affidavit. The reasons included, inter alia, his tight schedule as a financial adviser, and his need to travel abroad frequently on short notice so that he could not afford the several days scheduled for the examination. He also complained that the scope of the examination was unclear and that he was not consulted as to whether he was willing to give evidence at the trial of the US proceedings. He said he was prepared to do so.

5. In response to Mr Chi's complaints, Mr John Lovi, counsel for the plaintiffs, i.e. Korea Life Insurance Co. Ltd and Morning Glory Investment Limited, filed an additional affidavit dated 7 November 2000. He maintained that there should be no adjournment granted and he had, point by point, dealt with the matters raised by Mr Chi. He had also provided information as to what had transpired after the dismissal of the summons by Master Cannon. It appeared that Mr Chi had made an application directly to the Examiner on 2 November 2000. That application was also rejected. Then on 6 November 2000, Mr Chi appeared before the Examiner with his legal representatives. His further attempt to adjourn the examination was again turned down. Afterwards, Mr Chi raised, for the first time, the issue of the Fifth Amendment under the US Law. In view of this issue, parties had agreed to seek, forthwith, direction from Judge Hellerstein. They are now waiting for the learned judge's ruling.

6. This morning I have received a copy of the letter by Messrs Herbert Smith addressed to Messrs Richards Butler. The letter stated that they would not attend this appeal hearing and would consent to an order to be made in the following terms :

(1) the Notice of Appeal be dismissed; and

(2) costs be payable by the applicant.

7. At the hearing, Mr Stokes informed this court that in fact they would not pursue the appeal and would agree to pay the cost; however, he invited this court to grant leave to allow them to withdraw the appeal and not to dismiss it. He rightly pointed out that if the appeal was dismissed, then it could not be revived. Mr Lin and Mr Chau for the other parties opposed the granting of leave to withdraw. They submitted that unless there was a proper and valid reason, otherwise this appeal should be dismissed.

8. Mr Stokes had referred this court to the relevant passage in the Whitebook on this matter. Paragraph 59/1/69 stated that :

"Withdrawal of appeals - An appeal cannot be withdrawn without the leave of the Court (Tod-Heatley v. Barnard [1890] W.N. 130, CA). If an appeal is withdrawn, as opposed to being dismissed, it would appear that, subject to obtaining the necessary leave and/or extension of time, the appellant could proceed with an appeal by serving a fresh notice of appeal. For this and other reasons it is now the usual practice of the Court of Appeal to insist that appeals are either heard or disposed of by means of a dismissal by consent or other consent order. Only in rare circumstances will the Court of Appeal permit an appeal to be withdrawn."

9. In light of the principle as stated above, I would accept the submission that unless there are cogent reasons, otherwise, the appeal should be dismissed. Having hearing the submissions, I was not persuaded that there was any good reason to allow the appeal to be withdrawn, particularly in view of the fact that the proceedings before the Examiner had already commenced. Despite Mr Stokes' submission, I do not accept that issues arising from the examination could have any bearing on Master Cannon's decision. Furthermore, on the strength of the matters disclosed in the affidavits filed in relation to this appeal, if I have to come to a decision on the merits, I would dismiss this appeal without much hesitation.

10. In the circumstances, this appeal must be dismissed with costs against the applicant, Mr Chi, to be taxed if not agreed.