TIGER RESORT ASIA LTD v. KAZUO OKADA AND OTHERS

HCA 3017/2017

[2018] HKCFI 2788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 3017 OF 2017

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D E C I S I O N

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1.  The Plaintiff first came before me on 6 February 2018 for discovery and inspection of certain materials and documents pursuant to Section 21 of the Evidence Ordinance Cap 8 and the inherent jurisdiction of the court. On 20 February 2018 I allowed the application. I set out the reasons in my Reasons for Decision handed down on 16 March 2018. In that Reasons for Decision, I also gave some background about the case which I will adopt but not repeat.

2.  On 6 June 2018, the plaintiff took out another summons (the “6^th June Summons”) for inter alia further injunctive relief against some of the defendants.  One of the Order sought was that:

“The 1st Defendant shall preserve and shall not deal with, dispose of or in any way make use of (save with the written consent of the Plaintiff or Order from the Court), diminish the value of or part with possession of (i) the sum of JPY ¥1,002 million…(the “Third Sum”) or its fruits or proceeds…”

The plaintiff also seeks thereby a similar Order against the 1^st defendant (“D1”) relating to another sum of US$18 million (called the “Fourth Sum”) and against the 5^th defendant (“D5”) relating to yet another sum of JPY¥305 million (called the “Fifth Sum”).

3.  The plaintiff, D1 and D5 attended before me on 15 June 2018.  The plaintiff, represented by Mr Kwan, sought an interim-interim injunction in respect of the Third, Fourth and Fifth Sums.  I raised with Mr Kwan the justification of granting what were said to be proprietary injunctions covering sums which in total exceeded the total amount of the plaintiff’s monetary claim.  I also raised with Mr Kwan the wide scope of the Orders sought, covering not only the specific Sums but also their “fruits or proceeds”.  I was thus concerned about the difficulty in identifying those “fruits or proceeds”, and hence the difficulty in policing any interim-interim injunction in those terms.  I on that occasion refused to grant any interim-interim relief.  I gave some directions on the filing of evidence.  I then adjourned the 6^th June Summons for substantive hearing.

4.  The 6^th June Summons was subsequently fixed to be heard before me on 19 December 2018.

5.  On 23 August 2019, Messrs Haldanes, solicitors acting for the plaintiff, wrote to my clerk.  They claimed that D1’s and D5’s cases relating to the three Sums as set out in their affirmations filed pursuant to my directions were not supported by any documentary proof.  They then said:

“Further, a number of recent news reports have revealed that the 1st Defendant has been arrested by the ICAC concerning the subject matter of the misappropriated HK$135 million in this action. The arrest of the 1st Defendant suggested a real risk that the 1st Defendant may further dissipate the funds in question unless restrained by the Court.”

Haldanes then continued to say:

“In view of the above, the Plaintiff has decided to renew its application for interim injunction against the 1st Defendant only in respect of the Third Sum referred to in paragraph 7 of the Summons pending the substantive hearing in December 2018…

It is estimated that the length of the hearing of the renewed application for interim injunction in respect of the Third Sum is 30 minutes.  In the premises, we respectfully seek leave for the Summons to be relisted before His Lordship with 30 minutes reserved.”

6.  On 30 August 2018, I gave the following directions:

“It is a matter for the Plaintiff to decide whether it seeks to have the matter re-listed. If the Plaintiff decides to do so, it has my leave to have it re-listed before me. The duration of any hearing so relisted is for the parties to estimate.”

7.  The scope of the Leave was limited, that if the plaintiff decided to have the matter relisted, the matter could be relisted before me. By so directing, I was not endorsing any decision on the part of the plaintiff to have the matter relisted.  Access to court is the plaintiff’s right. How it intended to exercise its right was a matter for it.  It was a decision for the plaintiff to make.  But it does however mean that should the plaintiff decide to have the matter relisted, and now that it has, it is for it to justify why the Court should in effect rehear the part of the application concerning the Third Sum despite the fact that the substantive hearing of the 6^th June Summon will take place in 40 days’ time.

8.  As it turned out, the plaintiff did have the matter relisted before me. They come before me this morning.  Mr Kwan continues to appear for the plaintiff.  He has filed a 13-page submissions with 20 authorities.  D1 is represented by Mr Pang.  His team has filed a 4-page submissions with 4 authorities. The hearing was set down for 30 minutes.

9.  I at the outset of the hearing invited Mr Kwan to clarify whether he is seeking an interim-interim injunction pending the substantive hearing of the 6^th June Summons, or whether he was seeking an interim injunction pending trial (thereby in effect seeking an earlier hearing of that part of the 6^th June Summons).  I ask because it appears to me that Mr Kwan is trying to have it both ways.  In the last paragraph of his written submissions, he submitted:

“If the Court agrees with the above submissions, it would have no difficulty in granting a proprietary injunction restraining the 3^rd Sum until trial or further order. Alternatively, the Court may grant an interim injunction pending the substantive hearing on 19 December 2018.”

The difference is of some importance.  If this is in fact an earlier hearing of the part of the 6^th June Summons relating to the Third Sum, (but not for interim-interim relief), and should I dismiss it, the plaintiff should not be permitted to have a third bite of the cherry and to reargue the matter yet again on 19 December 2018.  It will have to appeal against my decision.  Further, I see no reason why the hearing of the 6^th June Summons should be split up into two.  In the end, Mr Kwan confirms that his application is for interim-interim relief.

10.  That being the case, Mr Kwan will have to justify why he is entitled to have the matter reargued.  The topic is not dealt with in his written submissions. No material change of circumstances has been pointed to.  Nor did the matters raised in Haldanes’ letter of 23 August 2018 constitute in my view any material change of circumstances.  They suggested that the cases of D1 and D5 were not supported by any documentary proof.  Those allegations go to merits of the parties’ case, which will be considered during the substantive hearing.  In so far as D1’s arrest is concerned, Haldanes relied on it to show increase in the risk of dissipation.  Mr Kwan adopts that.  I do not at this stage see any necessary causal relationship between the two.  The information on the arrest before me is limited.  I take heed of what Mr Pang has informed me, that the ICAC has in fact returned to D1 his passport upon court order.  I further note that the Third Sum had been paid over more than two years ago.  But importantly, the plaintiff is before me this morning seeking a proprietary injunction in relation to the Third Sum.  Mr Kwan has emphasized this a number of times in his submissions.  As Mr Kwan has pointed out at paragraph 40.2 of his submissions, when it comes to proprietary injunction, there is no need to show risk of dissipation.  Mr Kwan submits that whilst that is so, the change remains relevant and sufficient to justify the relisting of the application.  I do not agree.  As Mr Pang has submitted, risk of dissipation not being a necessary element for the grant of a proprietary injunction, any change in that regard should not be regarded as a material one in the context of an application for one.

11.  In the circumstances, I agree with Mr Pang’s submissions that seeking the same interim-interim relief which has previously been denied by the Court where there has been no material change of circumstances is contrary to the underlying objectives in Order 1A of the Rules of the High Court, in particular Order 1A, rules 1(a), (b), (c) and (f). I refuse to entertain it.

12.  By reason of the above, I refuse to entertain the application.  I will proceed to hear the parties on costs.