BEIJING RENJI REAL ESTATE DEVELOPMENT GROUP CO., LTD v. ZHU MIN

CAMP 82 /2025, [2025] HKCA 748

On appeal from [2025] HKCFI 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 82 OF 2025

(ON AN INTENDED APPEAL FROM HCA NO 189 OF 2025)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the rolled-up hearing of the plaintiff’s renewed application for leave to appeal from an order made by Peter Ng J on 7 February 2025 (“Order”), and for the substantive hearing of the appeal if leave be granted. Leave to appeal was refused by the judge on 8 April 2025^[1].

2.  Quite apart from the challenge to the substantive merits of the Order in the intended appeal, there is dispute of what order was made by the judge on 7 February 2025, whether the judge had jurisdiction to amend the Order after it was sealed on 11 February 2025, and whether the judge had jurisdiction to give reasons for making the Order subsequently on 28 March 2025^[2]. Further, there is an allegation in the intended grounds of appeal that the judge failed to afford the plaintiff’s counsel a fair hearing, contrary to the principles of natural justice and giving rise to a real possibility of apparent bias.

3.  It is necessary to set out the relevant facts in some detail.

Background

(1) The Mainland Judgment and the Injunction

4.  The plaintiff, Beijing Renji Real Estate Development Group Ltd, is a Mainland company carrying on the business of real estate management.  The defendant, Zhu Min, is a Mainland resident, and the founder of Cybernaut Investment Group, which includes Cybernaut International Holdings Co Ltd (“ListCo”; a Cayman Islands company listed on the Main Board of the Stock Exchange of Hong Kong), and Cybernaut International Ltd (“Cybernaut HK”; a private Hong Kong company).  The defendant holds, partly in his name and partly through Cybernaut HK, a substantial portion of shares in ListCo.  Cybernaut HK is wholly owned by the defendant.

5.  By a judgment of the Higher People’s Court of Beijing Municipality dated 13 August 2019 (“Mainland Judgment”), the plaintiff obtained judgment against, inter alia, the defendant, by which the defendant was ordered to pay to the plaintiff RMB 201,769,932.

6.  In January 2020, the plaintiff learned that the defendant sold 634,284,000 Listco shares in his own name to Cybernaut HK (ie the present subject shares) (“1^st ListCo Share Sale”).  The plaintiff applied ex parte on 16 January 2020 and was granted a Mareva injunction against the defendant (“Injunction”) by Deputy High Court Judge Dawes SC, whereby the defendant was restrained from doing the following:

“(a) remove from Hong Kong any of his assets which are within Hong Kong, whether in his own name or not, and whether solely or jointly owned, up to the value of RMB 201,769,932… , or

(b) in any way dispose of or deal with or diminish the value of any of his assets, which are within Hong Kong, whether in his own name or not, and whether solely or jointly owned up to the value of RMB 201,769,932…

including but not limited to the Defendant’s direct and/or indirect shareholding in [Cybernaut HK] and [ListCo].”

7.  The Injunction was continued in HCMP 83/2020 (“Injunction Action”) under the Order of Marlene Ng J on 24 Jan 2020.  Another action was taken out by the plaintiff under HCMP 361/2020 (“Registration Action”) in which the plaintiff sought to register the Mainland Judgment under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap 597).  An order for registration of the Mainland Judgment was made.

8.  By the judgment of G Lam JA (sitting as an additional judge of the Court of First Instance) on 7 April 2022^[3],

(1)  In the Registration Action, he set aside the registration of the Mainland Judgment, holding that it was not registrable due to the absence of choice of Mainland court agreement;

(2)  In the Injunction Action, he continued the Injunction until judgment in that action on the Mainland Judgment or further order, holding that there was a good arguable case that the Mainland Judgment was capable of being enforced under common law, and finding that there was a real risk of dissipation of the assets by the defendant on account of the following:

(a)  The defendant demonstrated a complete disregard of his legal obligations in the Mainland;

(b)  He had failed to comply with the Mainland asset disclosure regime invoked by the plaintiff to enforce the Mainland Judgment;

(c)  The ListCo announcement regarding the 1^st ListCo Share Sale was disingenuous and misleading in that it falsely stated that the re-trial application of the Mainland Judgment was still being processed by the Supreme Court of PRC when that was not true;

(d)  As a result of the 1^st ListCo Share Sale, the defendant apparently converted his directly held assets from his shares in ListCo into HK$107.2 million in cash, and the transaction “divested himself of unencumbered publicly tradeable Listco shares, in return for a debt owed by a private company whose financial position is opaque”.

9.  The Injunction continued by G Lam JA in the Injunction Action has since remained in force.

(2) The Sept 2024 Transfer

10.  In around December 2024, the plaintiff discovered that on 13 September 2024, the defendant had transferred 356 million shares in ListCo in his own name to Cybernaut HK (“Sept 2024 Transfer”).  The plaintiff considered that the defendant has clearly acted in breach of the Injunction, which restrained him from “dealing with” the expressly identified shareholding in ListCo.

11.  The Sept 2024 Transfer was publicly reported and announced by the Disclosure of Interest Forms dated 13 September 2024.  By transferring the defendant’s direct interest in the ListCo shares into his indirect interest held through Cybernaut HK, both were and are still caught by the Injunction and the defendant was and is still bound by the Injunction.

12.  By correspondence between the parties’ solicitors in December 2024, the plaintiff demanded the defendant to procure the return of the ListCo shares to the defendant, and threatened to cite the defendant for contempt of court for the Sept 2024 Transfer.  In reply, the defendant’s solicitors claimed that the transfer was executed by his colleague Ms Xie Yan (“Xie”) who was unaware of the Injunction, that it was aimed at easing administrative inconvenience due to the defendant’s aging and health issues, and that there was no intention on his part to act contrary to the Injunction.  The defendant’s solicitors stated on 12 December 2024 that the defendant “has caused the reverse for the transfer of the relevant shares back to his name expeditiously by the security brokers” and expressed the hope that this “could be completed very soon”.

13.  Subsequently, the plaintiff requested a number of times for proof that steps had been taken to reverse the Sept 2024 Transfer. On 22 January 2025, the defendant’s solicitors responded that the defendant had been diagnosed with cancer and would be undergoing extensive treatment, and that they would provide substantive response in due course.  They reiterated that the defendant has “mandated” that the relevant shares be restored back to his own name as soon as possible and further update would be given as soon as this was available. 

(3) The 4 Feb 2025 Summons

14.  On 4 February 2025, the plaintiff issued a writ against the defendant in HCA 189/2025 (“Writ Action”) with a statement of claim, claiming RMB 192,579,705.21 being the sum due and owing to the plaintiff by the defendant under the Mainland Judgment with interest.  On the same day, the plaintiff issued a summons in the Writ Action (“4 Feb 2025 Summons”) which led to the hearing before the judge on 7 February 2025.  The 4 Feb 2025 Summons sought relief in these terms:

“1. An Order to be granted against the Defendant in terms of the Order annexed as Annex I of the summons;

2. Insofar as it may be necessary, pending the substantive determination of paragraph 1, there be interim-interim relief in the same terms as sought under paragraph 1; and

3. Costs of this summons be provided for.”

15.  The draft order in Annex I to the 4 Feb 2025 Summons was for the appointment of two professionals as receivers to receive the defendant’s 10,000 shares in Cybernaut HK with all proceeds of sale, dividends and distributions (collectively, “Subject Assets”).  It provided that the receivers shall have power to take all such steps as may seem expedient to preserve and recover the Subject Assets, and in particular shall have the powers set out in Schedule 3.  The appointment of the receivers shall remain in force up to the date to be specified unless before then it is varied or discharged by a further order of the court.  The defendant, as the director of Cybernaut HK, is to assist the receivers in their exercise of powers in Schedule 3 including the registration of the receivers as registered shareholders, the appointment of the receivers or their nominees as directors and the removal of existing directors.  Clause 6 provided that subject to compliance with the Injunction, the defendant shall be at liberty to remain a director of Cybernaut HK and the receivers shall abide by and give effect to any corporate actions of Cybernaut HK proposed by the defendant, save and except any sale, transfer, charge or other disposition of or creation of security over 356 million shares in ListCo or part thereof being the subject of the Sept 2024 Transfer.

16.  Schedule 3 set out in 12 paragraphs wide and comprehensive powers commonly found in the appointment of receivers over shares.

17.  The 4 Feb 2025 Summons was to be heard on the first summons day on a Friday, being 7 February 2025, at 10 am with 30 minutes estimated.  In support of this application, the main affirmation relied on by the plaintiff was that of Zhang Yi made on 4 February 2025 of 58 pages exhibiting a bundle of documents of 763 pages.  Counsel who was instructed to appear for the plaintiff, Mr Lai Chun Ho (“Mr Lai”) and Mr Han Sheng Lim, lodged a written submission on 4 February 2025 of 40 pages citing 23 authorities.  In §2 of his submissions, counsel stated that the plaintiff sought “interim-interim relief” against the defendant.

18.  The defendant lodged a written submission of his counsel, Mr Michael Lok (“Mr Lok”) and Ms Valerie Kwok, dated 6 February 2025, of 12 pages.  §2 mentioned that at the hearing on 7 February 2025, the plaintiff appeared to seek “interim-interim relief” under §2 of the 4 Feb 2025 Summons.  §3 (and §18) stated the defendant’s stance that the application for “interim-interim relief” should be dismissed and the application for interim receiver in §1 of the summons should be adjourned for full argument with directions for filing of evidence.  §19 addressed §1 of the summons and proposed draft directions for the filing of evidence and the further conduct of that part of the summons.  The defendant also adduced a short affirmation of Xie of 5 pages exhibiting a bundle of documents of 17 pages.

19.  The plaintiff’s counsel responded with a “Note of Reply” of four pages.

(4) The hearing on 7 February 2025

20.  The 4 Feb 2025 Summons came before the judge at 10:12 am.  Mr Lai informed the judge he had put in a comprehensive set of submissions as well as a note of reply.  He asked if he could take it that the judge had read them.  The judge did not indicate he had not.  Mr Lai then told the court the plaintiff was seeking “interim interim relief” that day, ie §2 of the 4 Feb 2025 Summons, and indicated he would be “quite brief”.  He started his submissions at 10:16 am, again stating that he would be “pretty brief” and mentioning that his application that day was for “interim interim relief”.  He addressed the judge on the test for granting “interim interim relief”, the factors that should be taken into account, that he had highlighted the holes in the defendant’s evidence, that the grant of receivership would have limited impact and that the order would be of “limited duration”, especially if the judge was minded to give expedited directions for the hearing of the matter.  He completed his submission at 10:18 am saying that he did not think he needed to repeat anything else. 

21.  The judge then went through the draft order with Mr Lai and raised a series of questions on the powers proposed for the receivers in Schedule 3.  The exchanges of the judge with counsel on the powers of the receivers lasted from 10:20 am to 10:44 am, with a short adjournment of about 13 minutes from 10:26 am to 10:39 am, for Mr Lai to consider his position on the various powers in Schedule 3.  After the adjournment, he informed the judge he would remove §§2, 3, 6, 7, 8, 9 and 11 in that schedule.  At 10:45 am, the judge asked him what exactly he was seeking and Mr Lai sought to explain Clause 6 of the draft order.  The judge then asked counsel to sit down please and said with a sigh “I don’t understand this at all.”

22.  Mr Lok addressed the court from 10:48 am to 10:58 am.  He submitted there was no heightened risk of dissipation so “today [the judge] doesn’t need to make any order”.  The judge asked to be shown the Injunction in the Injunction Action and sought Mr Lai’s confirmation that it was continued up to present.  Mr Lok made the point that the Injunction was good enough and that Mr Lai could not explain the need for full-blown powers of receivers.

23.  At 11:02 am, the judge turned to Mr Lai and asked his response to Mr Lok’s submissions, specifically why more was needed when the Injunction was existing.  Mr Lai answered that the defendant had already acted in breach against the Injunction, to which the judge remarked that the plaintiff could hold the defendant in contempt.  There were further exchanges on this up to 11:06 am, in the course of which Mr Lai said he wished to take the court to an authority showing that contempt is not an adequate remedy and the judge told him there was no need.

24.  At 11:06:35 am, the judge said: “Application dismissed with costs.”  The exchanges he had with Mr Lai on contempt did not end there, as the judge continued to ask Mr Lai that if the defendant was acting in contempt of the Injunction, what was the point of making another order so that the defendant could also act in contempt of that other order.  Mr Lai responded that was why he wanted to refer the judge to Akai Holdings^[4] for the proposition that contempt proceedings would not be an adequate remedy to prevent further dissipation.  After a couple of further exchanges, Mr Lai said he had already made his point.  The judge thanked counsel and repeated “the application is dismissed” at 11:08:24 am.

25.  The judge then dealt with costs and gave directions for summary assessment.  He asked the parties if they had dealt with everything.  Upon confirming with both sides there was nothing else, the hearing was adjourned at 11:11 am.

(5) The sealing of the Order and subsequent directions

26.  On 11 February 2025, the plaintiff’s solicitors submitted a draft of the Order for approval.  The draft referred to the 4 Feb 2025 Summons in the first paragraph of the recitals and defined it as “Summons”.  The body of the draft read as follows:

“IT IS ORDERED THAT:-

1. The Summons be dismissed;

2. Costs of the Summons be paid by the Plaintiff to the Defendant, to be summarily assessed, with certificate for one Counsel;

3. The Defendant shall submit his Statement of Costs within 3 days from the date hereof;

4. The Plaintiff shall submit its Statement of Objection within 3 days thereafter; and

5. Costs to be assessed on paper.”

27.  The judge’s clerk approved the draft order with changes to the title of the proceedings and the recitals but made no change to the body of the draft order.  The judge was not aware of this^[5].  The draft as approved was sealed on the same day on 11 February 2025.

28.  The sealed Order was served on the defendant’s solicitors on 20 February 2025.

29.  Also on 20 February 2025, the plaintiff filed a summons for leave to appeal to the Court of Appeal (“Leave Summons”) from the Order upon the grounds set out in the draft notice of appeal annexed. It was stated in the draft notice of appeal that by the Order, the 4 Feb 2025 Summons “seeking inter alia the appointment of interim receivers” was dismissed.  The draft was settled by Mr Patrick Chong of counsel, who appeared for the plaintiff in the subsequent applications for leave to appeal.  It ran to nine pages and is substantially the same as the draft amended notice of appeal of 12 pages placed before this court in the renewed leave application issued on 22 April 2025.

30.  The orders sought in the intended appeal are: “Interim receivers be appointed pending the trial of the [Writ Action] in terms of the draft order annexed as Annex I”; alternatively, “Pending the determination of [4 Feb 2025 Summons], interim receivers be appointed in terms of the draft order as annexed … as Annex I”, or on such terms as the court deems fit.  The powers for the interim receivers in schedule 3 of Annex I is the same as the Schedule 3 placed before the judge, and the 12 paragraphs in that schedule are left intact.

31.  Among the grounds of appeal is the contention that the judge erred in failing to have proper regard to material matters in reaching the decision to dismiss the 4 Feb 2025 Summons.  It was only in the amended grounds the contention was added that insofar as the judge held that the appointment of receivers on an interim-interim basis was not warranted, the judge failed to give due weight to the same matters relied on for the appointment of interim receivers.

32.  On 20 February 2025, the plaintiff’s solicitors wrote to the judge’s clerk referring to the Leave Summons and seeking a copy of the DARTS recording of the hearing on 7 February 2025 and the transcript on an urgent basis.  On 26 March 2025, the judge directed that the transcript be provided but not the DARTS recording, taking the view that the transcript is more than sufficient for the purpose of the intended appeal and the Court of Appeal should not be burdened with both.  In the directions on 16 June 2025 to hold a rolled-up hearing, Kwan VP directed that the DARTS recording be provided to the parties as well.  

33.  Also on 26 March 2025, the judge’s clerk wrote to the parties informing them of these directions made by the judge (“26 Mar 2025 Directions”):

“It has recently been drawn to Ng J’s attention that there was a misconception that Ng J had dismissed the entirety of the Plaintiff’s Summons dd 4.2.2025 when that was not the case. Para 1 of the Order for that hearing was drawn up by the Plaintiff’s solicitors under that misconception. In fact, Ng J had not dismissed the entire Summons.

As evident from the transcript, when Mr Lai opened his application on 7.2.2025, he made it very clear that he was only seeking interim interim relief that morning.

The stance of Mr Lok for the Defendant, at para 3 of his skeleton submission, was that, (i) the application for ‘interim interim’ relief should be dismissed while (ii) the application for the appointment of interim receivers, i.e. para 1 of the Summons should be adjourned for full argument (1 day reserved) with directions for the filing of evidence by both parties.

After hearing the parties for an hour (when the summons was listed only for 30 minutes), this court was not minded to grant interim interim relief and dismissed that part of the application. There was simply not enough time to hear Mr Lai’s submissions on para 1 of the Summons on the evidence or to consider the relevant authorities on the appointment of interim receivers generally, although he did try to go into them at some point in the course of the hearing. But there was no point to hear him part heard only to hear him again at the adjourned hearing.

What the Plaintiff had omitted to ask the court towards the end of the hearing was to adjourn para 1 of the Summons as suggested by Mr Lok in his skeleton submission which is a sensible suggestion. That can be rectified.

In light of the aforesaid, the Order dated 7.2.2025 drawn up by the Plaintiff’s  solicitors should be amended to reflect what actually happened at the hearing and to rectify the omission to incorporate the suggestion by Mr Lok, both under RHC O.20 r.11.  Alternatively, a supplemental Order can be made if required: Hong Kong Civil Procedure 2025, Vol 1, para 20/11/5.”

(6) The Reasons for Decision

34.  The judge handed down the Reasons for Decision on 28 March 2025 as the reasons for the Order on 7 February 2025 for dismissing the plaintiff’s application for “interim-interim” relief.

35.  In gist, his reasons are that the factual circumstances of the case do not warrant the interim-interim appointment of receivers, that there was no need for such urgency, and that he did not consider there to be a “heightened” risk of dissipation.  He referred to China Shanshui Cement Group & Ors v Zhang Caikui & Ors [2018] HKCA 409 at §14 on the approach in granting interim-interim relief.  He had this to say at §§23 and 24:

“23. Having read the parties’ skeleton and heard their submissions, it seemed to this court the Plaintiff could not establish any serious risk of dissipation of the ListCo Shares or any urgent need for the appointment of receivers on an interim interim basis. Further, the Plaintiff could have resorted to the remedy of contempt of court if it seriously thought that the Sept 2024 Transfer was in breach of the Injunction. The remedy was first suggested by the Plaintiff’s solicitors in their letter of 5 December 2024 but did not resort to. Lastly, there was a less draconian way to address the Plaintiff’s concern, apparent or real, than to appoint receivers over the Cybernaut HK Shares.

24. In other words, this court accepted the submissions of Mr Lok and did not consider the balance should lie in the Plaintiff’s favour at the hearing on 7 February 2025.  That was enough to dispose of the Plaintiff’s application for interim interim relief.  For these reasons, the Plaintiff’s application was dismissed.”

(7) The Leave Decision

36.  The Leave Summons issued on 20 February 2025 was heard by the judge on 8 April 2025.

37.  Prior to the hearing, the plaintiff’s solicitors made an open offer to the defendant in these terms:

“The open offer is set out under paragraphs 3 and 6(6) of the Plaintiff’s skeleton submissions filed on 3 April 2025:

(1) the costs order in the ‘Sealed Order’ should also be amended and confined to costs of the hearing on 7/2/2025 (‘Hearing’), as opposed to the Receivership Summons as a whole;

(2) D accepts that this Court (and another Court hearing the Receivership Summons) is not functus;

(3) there should be no order as to costs for P’s Leave Summons. Alternatively, the Leave Summons should be in the cause of the Receivership Summons;

(4) the undertaking given in D’s skeleton (that D will reverse the shares back to himself) should form part of the Order.”

38.  The judge enquired with Mr Lok at the hearing on 8 April 2025 the defendant’s stance to the open offer in the skeleton submissions of Mr Chong.  Mr Lok informed the judge that he only disagreed with the open offer concerning the costs of the Leave Summons.

39.  After hearing counsel, the judge refused to grant leave to appeal on 8 April 2025.  His reasons appeared in the Leave Decision on 15 April 2025.  He held that the leave to appeal application (on the basis that the judge had dismissed the entire 4 Feb 2025 Summons and despite the 26 Mar 2025 Directions pointing out the mistake) was on a misconceived premise and had no reasonable prospect of success.  He referred to NPYJ v SMRC [2018] 1 HKLRD 573 at §8 and China Shanshui Cement Group & Ors v Zhang Caikui & Ors at §§15 to 17 on the court’s approach in granting interim-interim relief and To Pui Kui v Ng Kwok Piu [2023] 5 HKLRD 278 at §§20 to 21 on the jurisdiction of the court to correct mistakes under the slip rule or its inherent jurisdiction.  As for the court’s exercise of discretion in refusing to grant interim-interim relief, he reiterated that the grounds were stated in the Reasons for Decision.  He rejected the contention there was a lack of fair hearing, apparent bias and breach of natural justice at the hearing on 7 February 2025.

(8) Renewed Leave Summons and new evidence

40.  On 22 April 2025, the plaintiff issued a summons in CAMP 82/2025 (“Renewed Leave Summons”) seeking leave to appeal the Order on the grounds set out in the draft amended notice of appeal.  The plaintiff issued another summons (“P’s New Evidence Summons”) on the same day for leave to adduce new evidence for the Renewed Leave Summons, being two announcements of ListCo that came after the hearing of 7 February 2025 published by the Stock Exchange of Hong Kong.  They were dated 9 February 2025 and 25 March 2025 and were issued by the defendant as chairman by order of the board of directors of ListCo.

41.  The plaintiff filed its statement in support of the Leave Summons on 22 April 2025 and the defendant filed his statement in opposition on 6 May 2025.

42.  On 16 June 2025, directions were given to hold a rolled-up hearing for the Renewed Leave Summons and for P’s New Evidence Summons to be heard at the same time.  The parties have since served detailed skeleton submissions incorporating their earlier statements.

43.  The defendant issued a summons on 15 July 2025 to adduce a second affirmation of Xie.  This was not opposed by the plaintiff. In her affirmation, Xie gave an update on the defendant’s reversal of the Sept 2024 Transfer, exhibiting the instruments for the re-transfer of the 356 million shares in ListCo back to the defendant executed on 3 April 2025, the re-transfer effected by the securities broker on 9 May 2025 and the Disclosure of Interest Forms filed on 12 May 2025.

(9) Amendment of the Order

44.  After the Leave Decision, the defendant’s solicitors wrote to the judge’s clerk on 16 April 2025 enclosing a draft amended Order for the judge’s consideration as the plaintiff’s solicitors had submitted no amendments.

45.  The plaintiff’s solicitors wrote to the judge’s clerk on 17 April 2025 stating that they oppose the proposed amendments to the Order for the reasons stated in their counsel’s submissions filed on 3 April 2025 for the Leave Summons heard on 8 April 2025.

46.  The judge’s clerk wrote to the parties on 26 May 2025 stating that having considered the Leave Decision and the subsequent letters of the parties, the judge directed there be an order in terms of the draft amended Order as proposed by the defendant’s solicitors.

47.  The body of the Order as amended (“Amended Order”), which was sealed on 26 May 2025, read as follows:

“IT IS ORDERED THAT:-

1. The Paragraph 2 of the Summons (‘Application’) be dismissed;

2. Costs of the Application Summons be paid by the Plaintiff to the Defendant, to be summarily assessed, with certificate for one Counsel;

3. The Defendant shall submit his Statement of Costs within 3 days from the date hereof;

4. The Plaintiff shall submit its Statement of Objection within 3 days thereafter; and

5. Costs to be assessed on paper;.

6. The Defendant do have leave to file and serve further evidence in opposition to paragraph 1 of the Summons, within 28 days from the date hereof;

7. The Plaintiff do have leave to file and serve evidence in reply (if any) within 21 days thereafter;

8. No further evidence be filed without leave of the Court;

9. Paragraph 1 of the Summons be adjourned for substantive argument before the Companies Judge (or another Judge designated by her Ladyship), with 1 day reserved, in consultation with one Counsel’s diary on each side.”

48.  It is odd that the 26 Mar 2025 Directions, which resulted in the amendment and re-filing of the Order on 26 May 2025, is not an order appealed from in the intended appeal.  And that is despite the plaintiff’s stance in April in opposing the amendments to the Order and the persistence in pursuing the ground of appeal that the judge had no jurisdiction to amend the Order sealed on 11 February 2025.

49.  We turn to consider the intended grounds of appeal in the draft amended notice of appeal.

Jurisdiction of the judge to amend the sealed Order

50.  Mr Chong submitted that the 26 Mar 2025 Directions could not have been right, that is because the manifest intention of the judge was to dismiss the entire 4 Feb 2025 Summons, not just the application for interim-interim relief.  Although the court has inherent power to vary its own orders to carry out its own meaning and to make that meaning plain, and an express power under Order 20 rule 11 of the Rules of the High Court to correct any error in any order resulting from accidental slip or omission, these powers extend only to the correction of errors in expressing the court’s “manifest intention”.  It has no powers to correct “mistakes of its own”, even where it is satisfied that it has indeed made such a mistake^[6]. Thus, an order cannot be corrected in a manner that constitutes a “radical departure from an order which, when made, appeared to be consistent with the expressed intention of [the judge].”^[7]

51.  He further submitted that the slip rule “does not enable the Court to have second thoughts”.  If a judge made an error of law, “the remedy is to appeal, if a right of appeal exists.  The skilled arbitrator or judge may be tempted to describe this as an accidental slip, but this is a natural form of self-exculpation.  It is not an accidental slip.  It is an intended decision which the arbitrator or judge later accepts as having been erroneous.”^[8]

52.  In support of his contention that the “manifest intention” of the judge was plainly to dismiss the entire 4 Feb 2025 Summons and not merely the application for interim-interim relief, Mr Chong relied on the following:

(1) The hearing on 7 February 2025 was the first hearing of the 4 Feb 2025 Summons.  The entire summons was before the court and it was within the judge’s power to dismiss the entire summons even if the plaintiff only asked for interim-interim relief.

(2) The only reason the judge gave at the hearing for dismissing the “application” was that if the defendant was acting in contempt of the Injunction, there was no point in making another order so that the defendant could also act in contempt of that order as well^[9] (Mr Chong called this the “Oral Reason”).  The Oral Reason was applicable to the 4 Feb 2025 Summons as a whole and not just the interim-interim application.  The Oral Reason would and did finally determine the entire summons and “That was how everyone understood it at the time”.

(3) These matters indicated that it was the understanding of everyone in the court the entire summons had been dismissed:

(a) The judge made no directions for the filing of further evidence and/or the substantive hearing of the 4 Feb 2025 Summons.

(b) Although Mr Lok sought directions in his written submissions for filing further evidence and for §1 of the 4 Feb 2025 Summons to be adjourned for substantive argument, he confirmed at the end of the hearing after the judge had dealt with costs that there was nothing else to deal with on his part. 

(c) The draft order submitted for approval stated clearly in §1 that the entire 4 Feb 2025 Summons be dismissed.  The judge’s clerk reverted with seven changes to the title of the proceedings and the recitals but made no change to the body of the draft order.

(d) After the sealed Order was served on the defendant’s solicitors on 20 February 2025, they did not inform the plaintiff’s solicitors or the court that §1 of the sealed Order was erroneous.  This shows that they also understood the entire 4 Feb 2025 Summons had been dismissed.

53.  There is no dispute on the legal principles in the cases cited by Mr Chong.  The crux of the matter is the manifest intention of the judge.  We have no difficulty in coming to the view that his manifest intention was to dismiss only the interim-interim application and not the entire 4 Feb 2025 Summons, mainly for the reasons submitted by Mr Bernard Man SC for the defendant^[10].

54.  Our reasons are as follows:

(1) The judge stated clearly in the 26 Mar 2025 Directions there was a misconception of the plaintiff’s solicitors that he had dismissed the entirety of the 4 Feb 2025 Summons when that was not the case and he had not in fact dismissed the entire summons.  There is no good reason not to accept the judge’s clear statement of his manifest intention in making the Order and treat it instead as “a natural form of self-exculpation”.

(2) As explained by the judge in the 26 Mar 2025 Directions, his manifest intention is borne out by the submissions of both counsel at the hearing.  In their written and oral submissions, Mr Lai made clear that only interim-interim relief was sought that day and Mr Lok clearly responded only to that application.  At no stage of the submissions and the court’s exchanges with counsel was any perceptible change that the court was asked to consider a very different application.  That was how all concerned had understood the application that was before the judge all the time. 

(3) It is entirely understandable that counsel on both sides argued their case on the basis that only interim-interim relief was sought.  The hearing on 7 February 2025 was a summons day on a Friday, with only 30 minutes reserved, notwithstanding the substantial written submission lodged by Mr Lai and the voluminous evidence filed by the plaintiff in support of the 4 Feb 2025 Summons. As stated by the judge in the 26 Mar 2025 Directions, there was simply not enough time to hear Mr Lai’s submissions on §1 of the 4 Feb 2025 Summons on the evidence or to consider the relevant authorities on the appointment of interim receivers generally, although counsel did try to go into them at some point in the course of the hearing.

(4) At no point did the judge unequivocally dismiss the entire 4 Feb 2025 Summons.  Mr Chong fastened on a statement in the judge’s exchange with Mr Lai, which he called the “Oral Reason” as the basis of the alleged dismissal of the entire summons.  Whilst the judge’s statement was preceded by the words “Application dismissed with costs”, on a proper reading of the transcript, the judge’s statement was made in the context of his continued exchange with Mr Lai, rather than the delivery of his reasons for the application he just dismissed.  The “Oral Reason” is in any event consistent with a decision to dismiss only the interim-interim application, as Mr Chong would appear to recognise.

(5) As for the subsequent slips, we do not think they would provide cogent indication it must be the understanding of everyone in the court that the entire 4 Feb 2025 Summons was dismissed.  The omission of both parties to ask for directions on the further conduct of the summons, notwithstanding it was the intention of both to do so as appeared from their written and oral submissions earlier, could well be inadvertent, instead of a considered move not to do so thinking that such directions would no longer be necessary. 

55.  In this situation, the judge is plainly correct in the 26 Mar 2025 Directions that the Order drawn up by the plaintiff’s solicitors should be amended to reflect what actually happened at the hearing and that the omission to seek directions for the further conduct of the 4 Feb 2025 Summons should be rectified.  We do not understand Mr Chong to have contended that if the manifest intention of the judge was to dismiss only the interim-interim application, he had no jurisdiction to amend the sealed Order mistakenly approved by his clerk on 11 February 2025 to correct the error in expressing his manifest intention resulting from an accidental slip in failing to spot the error in the draft order for approval, and to rectify the omission to give directions at the conclusion of the hearing for the further conduct of the summons, under the inherent jurisdiction or the express power under Order 20 rule 11.  We would, however, accept that given no directions on the further conduct of the summons were given at the hearing, it would be more appropriate for §§6 to 9 of the Amended Order to be made by way of separate further directions.

56.  It is not necessary to discuss further the cases cited by Mr Man^[11], which Mr Chong has sought to distinguish.

57.  Insofar as the intended appeal is made on the basis that the judge had dismissed the entire 4 Feb 2025 Summons, we agree with the judge that the premise was misconceived.

58.  We note the open offer made in Mr Chong’s skeleton submissions to the judge quoted earlier to the effect that the plaintiff was prepared to proceed on the premise that the dismissal of the application on 7 February 2025 was for interim-interim relief if the plaintiff’s position on costs for the Leave Summons was accepted.  As recorded in the Leave Decision, the defendant’s counsel agreed with all the other terms in the open offer, including acceptance that the judge and another judge hearing the summons for interim receivers is not functus.  Mr Man made the point that as the plaintiff’s position on costs for the Leave Summons was not accepted, the plaintiff has persisted in contending that the entire 4 Feb 2025 Summons was dismissed and this seems very odd.  We are inclined to agree that this is another oddity in the plaintiff’s conduct of these proceedings.

Jurisdiction of the judge to deliver the Reasons for Decision

59.  Mr Chong submitted that the Reasons for Decision were to supplement or vary the reason already given by the judge orally at the hearing when he dismissed the application.  This is a reference to the judge’s statement at page 17 lines E to F of the transcript (that if the defendant was acting in contempt of the Injunction, there was no point in making another order so that the defendant could also act in contempt of that order as well), which counsel called the “Oral Reason”.  Mr Chong argued that this is impermissible, as there are “limits within which a judge can correct or add to a draft of orally delivered reasons for judgment” and although a judge may correct a slip and infelicities of expression “it is not permissible to alter the substance of reasons once given”.  This is because once an order is pronounced, rights of appeal or to seek leave to appeal arise and those rights “can be given effect to only if the reasons are in substance those that the Judge has given at the time of making the orders concerning which the right of appeal or to seek leave arises”.  Hence, where additional reasons are not properly given in the exercise of judicial power, the course commonly taken is for the appeal court to “disregard” them^[12]. For good measure, he referred to §39 of the Guide to Judicial Conduct 2022 which provides that “A judge may not alter the substance of reasons for a decision given orally.  The correction of slips, poor expression, grammar or syntax and the inclusion of citations omitted at the time of delivery of oral judgments are acceptable.”

60.  Mr Chong referred to the Reasons for Decision in which the judge stated at §23 that the plaintiff “could not establish any serious risk of dissipation of the ListCo Shares or any urgent need for the appointment of receivers on an interim interim basis”.  He submitted that this statement in the Reasons for Decision was plainly to alter the substance of the judge’s original reason, namely, the Oral Reason.  Applying the principles he has invoked, the Reasons for Decision should be disregarded by the appeal court.

61.  We agree with Mr Man it is incorrect to assert that in the Reasons for Decision, the judge had sought to supplement or vary the reason already given by him orally at the hearing for dismissing the application.  On a fair and proper reading of the transcript, the judge was not purporting “to give reasons at the same time as the orders are pronounced”, such that “the principles of open justice require that the Judge’s reasons should be taken to be in substance those that he or she is purporting to give at that time”^[13]. Before and after dismissing the application, the judge was merely engaged in exchanges with Mr Lai on why the plaintiff considered more was needed when the Injunction was existing, why the plaintiff could not hold the defendant in contempt for having breached the Injunction, and what was the point of making another order so that the defendant could also act in contempt of it.  Besides, the considerations that the plaintiff could not establish any serious risk of dissipation of the ListCo Shares or any urgent need for the appointment of receivers on an interim-interim basis were canvassed in the submissions of both counsel at the hearing.  There is no alteration of the substance of any reasoning that had been given as contended by Mr Chong.

62.  It must also be borne in mind that the judge was dealing with an application on a summons day that was set down for 30 minutes, and, in similar situations, a judge would not be expected to give reasons for the order pronounced after hearing submissions.  The “Oral Reason” is simply not the delivery of any reasoning by the judge.  The contrast with the situation in Tre Cavalli Pty Ltd could not have been greater.

63.  It is entirely permissible and appropriate for the judge to deliver the Reasons for Decision, when he realised that reasons are called for as the Leave Summons was issued on 20 February 2025, that no reasons had been given at the hearing and it would be of assistance to the parties and the appeal court (if the leave application should be renewed) to learn of his reasons in making the Order.

64.  There is plainly no merit in Mr Chong’s contention.

The merits of the dismissal of the interim-interim application

65.  Mr Chong has proceeded on the premise that the “Oral Reason” was the only reason for dismissing the entire 4 Feb 2025 Summons on 7 February 2025 and hence the judge was plainly wrong in that he failed to consider a host of factors which justified the appointment of interim receivers over the Cybernaut HK shares.  For the reasons given above, his entire premise is incorrect.  The judge only refused to grant interim-interim relief and did not deal with the appointment of interim receivers on 7 February 2025; he did not deliver reasons for the Order in the “Oral Reason” and is entitled to deliver reasons on 28 March 2025 in the Reasons for Decision.

66.  Mr Chong further submitted that even if the appeal court may have regard to the Reasons for Decision:

67.  Firstly, the judge is plainly wrong in law to hold that the plaintiff could resort to the remedy of contempt proceedings as contempt proceedings are used to prevent further and continuing dissipation of assets and do not militate against the grant of receivership^[14]; and

68.  Secondly, the judge failed to consider a host of relevant factors which make clear there was heightened risk of dissipation and urgent need to appoint receivers on an interim-interim basis; these factors are:

(i) the transfer of the ListCo shares under the defendant’s name to Cybernaut HK constituted a clear breach of the Injunction, the fact that the recipient was the defendant’s corporate vehicle does not make it less of a breach in that there was “dealing” with the ListCo shares and the asset is one level removed from the defendant;

(ii) the Sept 2024 Transfer was a repeat of the 1^st ListCo Share Sale in January 2020, for which the Injunction was granted and continued in the Injunction Action, and the defendant must have known that the Sept 2024 Transfer amounted to a breach of the Injunction;

(iii) the defendant falsely represented to the plaintiff’s solicitors on 12 December 2024 that he “has caused the reverse for the transfer of the relevant shares back to his name expeditiously by the security brokers” when that was not the case;

(iv) the explanation put forward by Xie in her 1^st affirmation on 6 February 2025 for the Sept 2024 Transfer and the failure to reverse the same was “utterly incredible”;

(v) it is difficult to understand how transferring 356 million shares in ListCo to Cybernaut HK would “ease administrative inconvenience due to the defendant’s aging and health issues” as asserted by the defendant’s solicitors in correspondence;

(vi) the defendant was only hospitalised on 15 January 2025 and yet he did not make any efforts to reverse the transfer of shares prior to that;

(vii) the defendant is “clearly not ill” as he was in a position to sign the public announcements of ListCo dated 9 February 2025 and 25 March 2025  (the subject of P’s New Evidence Summons);

(viii) the transfer of 356 million shares in ListCo to Cybernaut HK is highly prejudicial to the plaintiff as Cybernaut HK is a private company and its shares can be transferred without effective third party scrutiny, the financial position of Cybernaut HK is opaque, Cybernaut HK may pledge the ListCo shares, the defendant may pledge the Cybernaut HK shares;

(ix) there is little to no prejudice to the defendant by granting the receivership order in light of Clause 6 of the draft order and Cybernaut HK is only an asset holding company.

69.  Most of the above factors have been mentioned in the 40-page submission and note of reply of the plaintiff’s counsel placed before the judge.  Mr Chong submitted that as the “host of relevant factors” have not featured in the “Oral Reason” or the Reasons for Decision, it is clear that the judge had failed to take any of them into account or give them proper weight.  He further argued that even though the defendant did reverse the Sept 2024 Transfer and has transferred the 356 million shares in ListCo back to himself, the appointment of receivers is still warranted in light of the factors he submitted above.

70.  It is important to bear in mind that the court was and is concerned with an application for appointment of receivers on an interim-interim basis.  As stated by Lam VP (as he then was) in NPYJ v SMRC:

“3. Interim-interim arrangement, as I said over the course of the hearing, was meant to be a very short-term basis kind of arrangement and this sort of arrangement would only be or this sort of order would only be made as a temporary measure and in the circumstances where the court feels that there are other issues which have to be explored, and the time given to the court to deal with the matter and in preparation of the matter were not sufficient for that purpose. In the meantime, there has to be some kind of arrangement to regulate the affairs in light of the high conflict between the parties.

4. It is not meant to be an interim arrangement as such.  So parties are at liberty to come back to court to debate on what should be the interim arrangement.  And in light of that, there should not be any impediment to a party coming back to the court to say, notwithstanding this interim-interim order has been made which is, as I have said, very much a provisional thing, that the correct interim arrangement should be otherwise by seeking an appointment with adequate time for the court and the parties to consider the relevant materials.”

71.  In §5, Lam VP quoted Butler-Sloss J in Re J [1989] 2 FLR 304 where her ladyship said at 308: “I must say I would deprecate the instant appeal of an interim order.”  As noted by Lam VP, the reasons for deprecating such an appeal would apply with even greater force to an interim-interim order.  Lam VP continued in §8:

“The Court of Appeal is not the forum for the parties to make a second attempt when they fail in the first instance, just hoping that the Court of Appeal or judges in the Court of Appeal will form different views on the weight to be attached to a particular factor. This is not a proper use of an appeal. As we have said on a number of occasions, in an appeal against discretion, the court is not to exercise the discretion by the members of the Court of Appeal as if we were sitting in the Court of First Instance. We only examine whether there is any error on the part of the judge which is so plainly wrong. And in the present context, I would adopt the wording of Butler-Sloss J, unless it is extremely plain that the judge has gone wrong, parties should not come to this Court.”

72.  See also similar statements by Lam VP in China Shanshui Cement Group Limited & Ors v Zhang Caikui & Ors at §13 (“interim interim relief is meant to be an urgent temporary stop-gap measure and the circumstances were such that the court has to do practical justice on the balance of fairness even though it may not have sufficient time to consider the matter fully”), §15 (“Given the short lifespan of interim interim relief and the high discretionary nature of a first instance decision on the grant and refusal of relief, the Court of Appeal would rarely interfere with such decision”), §§16 and 17.

73.  Quite clearly, the threshold for appellate interference of the dismissal of interim-interim relief is not met in this instance.

74.  On Mr Chong’s first point, as pointed out by Mr Man, the significance of contempt as an available remedy has been explained by the judge in the Reasons for Decision at §§10 to 12 and 23, and this goes to the necessity and utility of the interim-interim appointment of receivers as a matter of balance.  This is consistent with Akai Holdings Ltd in which the court’s reference to contempt at §41 preceded discussions on the assessment and balancing of matters including the alleged risk of dissipation of assets and the current protective regime and its efficacy at §§45, 47 to 48.  It cannot be suggested that as a matter of law, the appointment of a receiver must follow from a breach of an injunction, regardless of the overall circumstances of the breach.  This is a multi-facet assessment, and the weight to be attached to the concern of the risk of dissipation in the light of all other evidence is very much a matter for the judge.

75.  On the second point of Mr Chong regarding the host of relevant factors, the judge had set out in §§19 to 23 of the Reasons for Decision the factors to which he attached weight to do practical justice on the balance of fairness.  The fact that he did not mention the host of relevant factors does not mean he had not considered or had overlooked them, as most of them have been mentioned in the two written submissions of the plaintiff placed before him.  He was entitled not to give weight to them for the purpose of the relief that he was asked to grant, and to form the view that there was no heightened risk of dissipation of the ListCo shares to justify the need for the urgent appointment of receivers on an interim-interim basis.  That is enough to dispose of the application.  He obviously did not think the circumstances were such that temporary stop-gap relief should be granted to do practical justice on the balance of fairness, even though the court might not have sufficient time to consider the matter fully.  He cannot be said to be plainly wrong.

76.  We have not overlooked Mr Chong’s contention that the appeal court cannot defer to a judicial discretion that was not exercised at all.  He asserted that the judge did not even begin to exercise his discretion, let alone that he had properly exercised his discretion, and had just dismissed the entire summons on a “single flawed premise”, namely, the “Oral Reason”, and failed to analyse the evidence and balance the competing factors.  We do not accept that was the true and correct position, for the reasons given when we rejected the earlier grounds of this intended appeal.

77.  As for P’s New Evidence Summons, we do not think the two public announcements of ListCo would have an important influence on the result of the intended appeal.  The requirement in Ladd v Marshall [1954] 1 WLR 1489 at 1491 is not met.  We dismiss this summons.

78.  Before turning to the last intended ground of appeal which relates to the judge’s conduct of the hearing, we wish to say that the proposed appeal to seek the appointment of receivers on an interim-interim basis appears to us very much an academic exercise.  Even if the judge had been in error (which we do not think is the case) and we should exercise the discretion afresh, we cannot see how it is merited to grant such interim-interim relief given that the defendant had on 9 May 2025 completed the re-transfer of the 356 million shares in ListCo to himself.  Mr Man made a valid point that it is meaningless to appoint receivers to receive the defendant’s 10,000 shares in Cybnernaut HK now that this company no longer holds the 356 million shares in ListCo.  Given that months have passed, and the judge has already given directions for the further conduct of §1 of the 4 Feb 2025 Summons on 26 May 2025 in the amended Order, we do not understand why the plaintiff would not just proceed with the appointment of interim receivers.

Procedural fairness at the hearing

79.  Mr Chong, who did not appear at the hearing on 7 February 2025, submitted that the judge had prevented Mr Lai from properly presenting his case and this gave rise to apparent bias and/or an unfair hearing.  We were reminded of the relevant principles on apparent bias^[15]. Mr Chong submitted that even where no apparent bias is made out, a hearing may nevertheless be unfair where “one party has been treated in such a way as to disable him or her from advancing his or her case properly”^[16].  Although the allegations of apparent bias and unfair trial overlap, they are distinct and require appraisal from different perspectives, “for while the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”^[17].

80.  Mr Chong submitted that the judge’s conduct showed that he was not open to persuasion and would not fairly consider the case being presented, and that Mr Lai was prevented from advancing his case properly, feeling unable to make any meaningful submission.

81.  His complaints may be summarised as follows:

(1) The judge dismissed the application before Mr Lai finished making his reply submissions, so counsel did not have a fair hearing.

(2) He refused to read the authority (Akai Holdings Ltd) when Mr Lai asked him to do so.

(3) He impeded Mr Lai from submitting that in deciding whether to make an order, the court does not contemplate the possibility that it will be disobeyed.

(4) He did other acts which created an “intimidating” atmosphere, which disabled Mr Lai from properly advancing his case, resulting in an apparently biased or unfair hearing.  These acts were: slamming the hearing bundles loudly and banging on his table; repeatedly cutting off Mr Lai with the effect that counsel had no or no proper opportunity to address him; challenging the competence of counsel on a number of occasions such as by stating that counsel did not think before he spoke; using sarcastic, aggressive and/or demeaning language^[18].

(5) In contrast, the judge did not treat Mr Lok the same way.

82.  We have taken the complaints made on instructions seriously.  We have read the transcript thoroughly and listened to the DART recording intently.  Adopting an objective judicial assessment and assessing the whole situation through the perspective of a reasonable, objective, fair-minded and informed observer, we are of the firm view that the judge’s conduct did not fall within the wrong side of the line.

83.  It is pertinent to bear in mind the nature of the hearing and the circumstances in which the application came before the judge.  This was an application on a summons day set down for 30 minutes, in which the judge was to deal with an interim-interim relief.  The papers before him were voluminous.  The supporting affirmation alone was over 50 pages.  Mr Lai lodged a 40-page submission with a short note of reply.  In light of his detailed submissions, he told the judge at the outset that he would be “quite brief” and that he did not think he needed to repeat anything else when he finished his oral submission on the appointment of interim-interim receivers.

84.  Notwithstanding the limited time allocated for the hearing, the judge did what he could by raising questions with both sides to get his focus on matters material to his consideration in making an order on the application, and, in doing so, even allowed the hearing to run for an hour.  Far from adopting a closed mind and showing unwillingness to consider the matter before him, the judge took Mr Lai to the draft order and questioned him closely on the powers sought for the receivers in Schedule 3 for counsel to satisfy him why an order should be made in those terms.  Counsel was given more than ten minutes to consider his position, at the end of which he informed the court that seven of the paragraphs in Schedule 3 would be abandoned.  When the judge asked Mr Lai to sit down please (at 10:48:01), he did so in a gentle tone and sounded exasperated rather than angry or intimidating.

85.  After Mr Lok made his submission (to which the judge appeared more receptive), there followed exchanges between the judge and Mr Lai on the need to appoint receivers when the Injunction was existing.  The exchanges were testy on the part of the judge in some places, and he could have been more courteous to counsel at times and made some of his adverse comments less personal.  Mr Lai also became rather heated in his answers to the judge, as we detect marked raising of his voice at 11:05:25 (this was not an occasion when the judge asked him to speak up).  There was on the whole an uninhibited exchange with the judge.  The judge had cut short Mr Lai on occasions in disagreeing with him, but this was nothing out of the ordinary.  There is nothing improper for a judge to interrupt or stop counsel if he thinks he has heard enough and it would be pointless to hear further arguments or read cases.  We are not persuaded that Mr Lai, a counsel of eight years’ standing with sufficient experience in advocacy, was prevented or disabled from presenting his case properly.  The “occasional departures of judge and counsel from appropriate standards of behaviour in court are nothing more than indications of ordinary human frailty”^[19]. These exchanges towards the end of the hearing must be considered in context in the entirety of the hearing and not weighed in isolation.  There is no reasonable basis to apprehend that the judge would not fairly consider the case being presented for the plaintiff.

86.  On an objective assessment and looking at the whole situation with the eyes of a fair-minded and informed observer, it does not appear to us that the judge’s conduct had created an intimidating atmosphere giving rise to apparent bias or an unfair trial.  It is not right to say that the judge had dismissed the application before Mr Lai finished making his reply.  There was a degree of informality about the process as there was continuing interaction with counsel, even after the judge had announced the application was dismissed.  It was the judge who asked Mr Lai again what was the point of making an order, causing Mr Lai to repeat his answer about preventing further dissipation.  Loud noise was recorded in a number of places^[20] but it is not apparent from the transcript that this was triggered by the judge’s exchanges with counsel at the time and it would not be right to attach significance to this.  We note that the judge’s tone was gentle and normal in those places.  His tone was stern at times but not overbearing, aggressive or intimidating.  There is no reason to think that the attitude of the judge towards counsel had affected his approach to the plaintiff or the issues in the application before him.

87.  We reject the contention there was apparent bias or an unfair hearing arising out of the judge’s conduct at the hearing.  In all the circumstances, the public would not have entertained a reasonable apprehension that the judge would not bring an impartial mind to resolve the disputes before him.

Conclusion and orders

88.  We are satisfied none of the proposed grounds of appeal has reasonable prospects of success.  We refuse to give leave to appeal and dismiss the Renewed Leave Summons.  As mentioned earlier, P’s New Evidence Summons is dismissed.  There is no dispute that costs should follow the event with summary assessment.

89.  Having considered the statement of costs lodged by the defendant and the plaintiff’s statement of objections lodged on 8 August 2025, we assess reasonable costs to be paid by the plaintiff to the defendant at $495,000.

[1]  Reasons for decision were handed down on 15 April 2025 (“Leave Decision”); [2025] HKCFI [1480]

[2]  [2025] HKCFI 1295 (“Reasons for Decision”)

[3]  [2022] HKCFI 1027

[4]  Akai Holdings Ltd (in liquidation) v Ho Wing On Christopher, HCCL 37/2005 & HCCL 40/2005, 1 September 2009

[5]  See Leave Decision §2, in which the judge referred to this as “the innocent mistake of this Court’s clerk in approving the misconceived draft Order prepared by the Plaintiff’s solicitors, Nixon Peabody CWL, that this Court had dismissed the entirety of the Plaintiff’s summons dated 4 February 2025.”

[6]  Citing To Pui Kui v Ng Kwok Piu at §20

[7]  Citing R v Cripps, ex p Muldoon [1984] QB 68 at 80H to 81B

[8]  Citing Bristol-Myers Squibb Co v Baker Norton Pharmaceuticals Inc (No 2) [2001] RPC 45 at §22, which quoted from Mutual Shipping Corporation v Bayshore Shipping Co [1985] 1 Lloyd’s LR 189 at 193.

[9]  Transcript p 17 lines E to F

[10]  With Ms Valerie Kwok

[11]  The Yin Nin Savings Mortgage Loan & Land Investment Co, Ltd & Anr v Occupiers of premises & Ors [2022] HKCA 613 at §§45 to 47; Adam & Harvey Ltd v International Maritime Supplies Co Ltd [1967] 1 WLR 445 at 448B to G.

[12]  Citing Tre Cavalli Pty Ltd v The Berry Rural Co Operative Society Ltd [2013] NSWCA 235 at §§54, 55, 57.  The reasons of the primary judge in that case were the subject of a reserved judgment which was given orally (at §50).  After an interval of 19 days, the primary judge gave what he described as additional reasons in writing for his decision.

[13]  Tre Cavalli Pty Ltd at §55

[14]  Citing Akai Holdings Ltd (in liquidation) v Ho Wing On Christopher at §§46 to 48

[15]  Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375 at §§51, 53; Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd (2014) 17 HKCFAR 281 at §36

[16]  Re G (Child) [2015] EWCA Civ 834 at §38

[17]  Serafin v Malkiewicz [2020] 1 WLR 2455 at §38

[18]  These examples were given of the language complained of: “I’m not blind.  I can read.”; “Jesus Christ, you can hold him in contempt.”; “Don’t give me that look, please.”  It is unnecessary to list out others, except to say we have noted them.  The above swear words that appeared in the transcript are hardly audible in the DART recording, they were muttered with a sigh under his breath. 

[19]  Falcon Private Bank Ltd v Borry Bernard Edouard Charles Ltd [2014] 3 HKLRD 375 at §58

[20]  At 10:20:09, 10:21:35, 11:03:42.  The other instance of loud noise at 10:25:19 mentioned in Mr Chong’s submission is not as noticeable in the recording.