KOO MING KOWN v. Rev Mr. MOK KONG TING AND OTHERS

HCA 2337/2016

[2018] HKCFI 1768

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2337 OF 2016

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DECISION

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1.  The Writ herein was first issued on 9 September 2016. At that stage, the 3^rd defendant (“D3”) was not a party. He was only joined upon application of the plaintiff first made by summons dated 23 March 2017, granted by Master Ho on 17 July 2017, and confirmed upon appeal by DHCJ To on 4 May 2018.

2.  Upon D3 being joined pursuant to the Order of Master Ho dated 17 July 2017, the Statement of Claim was re-amended.  The relief sought includes:

 (a)  a Declaration that D3 is not a fit and proper person to serve or continue to serve as the Supervisor of Hong Kong Pui Ching Primary School (the “Primary School”);

 (b)  further or alternatively, a Declaration that the appointment of D3 as Supervisor of the Primary School ought to be revoked with immediate effect.

3.  The plaintiff’s pleaded case is based principally upon certain alleged “false declaration of his academic qualifications” by D3.  On the face of pleadings, there is no allegation of any misuse of trust funds by D3,and no permanent injunction in restraint of any such conduct is being sought.

4.  By an inter parte summons dated 17 July 2018, returnable 3 days later on 20 July 2018, the plaintiff seeks an interim injunction against D3 alone to restrain him from misappropriating, misapplying or otherwise using:

 (a)  the assets of the Primary School;

 (b)  the donations earmarked for the Primary School’s benefits; and 

 (c)  the funds or money standing to the credit of the Primary School in its bank accounts;

for the purpose of:

 (i)  D3’s own legal expenses that have been incurred or are to be incurred in this action; and

 (ii)  any adverse costs orders that have been made or are to be made against D3 in this action.

5.  Mr Jean-Paul Wou appears for the plaintiff this morning.  He seeks an order in terms of the Summons.  Should the Court decide to adjourn the Summons for substantive argument, he invites the Court to make an interim interim order in terms of the Summons.

6.  Given the fact that the Summons was only taken out 3 days ago, I will adjourn it for substantive argument with directions on the filing of evidence.  The only issue left is whether an interim interim injunction should be granted.

7.  On the approach which the Court should adopt when consideringwhether to grant any “interim interim” relief, I refer to the recent decision of the Court of Appeal in China Shanshui Cement Group Limited & Others v Zhang Caikui & Others [2018] HKCA 409 (CAMP 58/2018, 19 July 2018),where Hon Lam VP observed at paragraphs 13 to 16, inter alia, that:

“13. … It has to be reiterated that 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 justiceon the balance of fairness even though it may not have sufficient time to consider the matter fully: see NPYJ v SMRC [2018] 1 HKLRD 573 and [3] and [4].

14. Thus, in the recent decision of Cyberland (China) Ltd v Zhang Wei Bing [2018] HKCFA 19, Ribeiro PJ granted a stay on payment out of money in court pending the Appeal Committee having the opportunity to hear the application for leave to appeal. His Lordship adopted the test of balance of fairness at [7] of that decision.

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: NPYJ v SMRC [2018] 1 HKLRD 573.

16. As we said, the court will only consider granting interim interim relief when it does not have sufficient time or fair opportunity to consider an application for interlocutory relief fully. Hence whatever views formed at such hearing and whatever decisions made must be provisional, open for further arguments and revisiting in the future.  But it does not follow that it would be wrong for the court to form some provisional view on the arguability or merit of a plaintiff’s case.”

8.  I have considered the evidence before me.  I have considered the parties’ submissions.  I adopt the approach and test of “balance of fairness” explained by the Court of Appeal in Shanshui.  For the following reasons, I refuse the plaintiff’s application for any interim interim relief:

(a)  I have set out the relevant procedural history of the case above.  The action was initiated nearly 2 years ago.  Application for joining D3 was only first made in March 2017.  The pleaded prayer for relief, even after amendments, seeks no permanent injunction along the line of the interim injunction being sought.  This chronology does not support any suggestion of urgency;

(b)  The Summons was only taken out 3 days ago.  D3 has had very little time to consider the same, let along filing any evidence in reply or opposition. Other defendant may also want to file evidence in reply;

(c)  Mr KM Chong who appears for D3 has raised the arguable point that “If the subject matter of injunction is money, it is difficult to see any reason why damage would not be adequate relief”;

(d)  Mr Chong has further made submissions on the strength of the evidence which the plaintiff is seeking to rely on in support of this application.  He calls them speculative, and the chains of logic remote.  Suffice for me to observe at this stage that the evidence is not direct, and they will have to be considered together with any evidence which D3 (or other defendants) may file before any view can be reached;

(e)  Mr Chong has also raised an issue which arises from Order 120 of the Rules of the High Court.  He informs me that the 4^th defendant (“D4”) is a charitable trust.  Order 120 is applicable.  He raises the pointas to whether the plaintiff, who is not a person who falls within any of the classes mentioned in Order 120, rule 3, can seek relief which relates to D4 (see Order 120, rule 1).  He also observes that the interim interim injunction has the effect of affecting the funds managed by D4, and yet it is not even made a parties to the application.  He submits that that is unfair.  I add that I do not even know the scope of D4’s powers in relation to the funds it manages, and in particular whether it may be within its powers and authorities to allow the funds it manages to defend a person in D3’s position.  I agree that these are all matters which warrant more mature consideration;  

(f)  Having considered all factors, I form the view that the balance of fairness tilts against the granting of the interim interim relief sought.

9.  I will adjourn the Summons for substantive argument.  I decline the plaintiff’s invitation to make any interim interim relief.  I will hear the parties on the terms of the directions to be given.