WELL JOINT TRADING LTD v. CHIU CHUNG CHIU also known as CHIU CHUNG CHIU THOMAS AND OTHERS

HCMP 498/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 498 OF 2012

(ON AN INTENDED APPEAL FROM HCA NO. 1768 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.  This is the 1^st and 2^nd defendants’ application by summons dated 20 March 2012 for leave to appeal against an order of Deputy High Court Judge Burrell dated 13 February 2012 by which he continued an ex parte Mareva injunction order granted by Sakhrani J on 19 October 2011.

2.  The application is a renewal of an application made to the Deputy Judge and which he dismissed by his Decision dated 7 March 2012.

3.  Pursuant to s. 14AA of the High Court Ordinance (Cap. 4) leave will only be granted where the applicant for leave demonstrates that the appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

4.  The background to the claim is set out in paras. 2 to 8 of the Judgment of the Deputy Judge dated 13 February 2012 and it is unnecessary to repeat that background here. The Deputy Judge concluded that the plaintiff had demonstrated a good arguable case (paras. 12 to 16), that the 1^st and 2^nd defendants had assets within the jurisdiction and that there was a risk of dissipation (paras. 17 to 19) and that the balance of convenience lay in favour of granting the injunction (paras. 20 to 22).  He rejected the 1^st and 2^nd defendants’ argument that there had been material non-disclosure at the stage of the ex parte application.  Accordingly, in the exercise of his discretion, he continued the ex parte injunction until trial or further order.

5.  The summons renewing the application for leave to appeal to this Court annexes a draft Notice of Appeal which contains 7 grounds of appeal.  These grounds are a refinement of the draft grounds put before the Deputy Judge when he was asked to give leave to appeal. However, apart from the numbering of the grounds, their substance is materially the same.

6.  In his Decision refusing leave to appeal, the Deputy Judge dealt with each of the draft grounds seriatim albeit that he indicated that his reasons would be “only briefly stated”.  Brevity was appropriate.  Applications for leave to appeal are not substantive appeals in their own right and it is sufficient for judges of first instance, and similarly for the Court of Appeal on a renewed application, to state reasons briefly when either granting or refusing leave.  Indeed, if leave is granted, it will rarely be necessary to say more than that the court is satisfied the proposed appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.

7.  In his Decision, the Deputy Judge briefly explained his reasons for holding that none of the proposed grounds of appeal gave rise to an appeal with a reasonable prospect of success.  Grounds 1, 3, 4 and 5 to 7 of the draft notice of appeal annexed to the summons before us are respectively materially identical to grounds 1, 2, 3 and 5 to 7 before the Deputy Judge and ground 2 of the draft notice of appeal annexed to the summons is a modified version of ground 4 before the Deputy Judge.

8.  I agree with the Deputy Judge’s reasons for concluding that none of the proposed grounds of appeal give rise to an appeal with a reasonable prospect of success.  For those same reasons, I too would dismiss the application for leave to appeal.

9.  Furthermore, I consider that the application is totally without merit and would therefore make an order, pursuant to RHC O.59 r.2A(8), that no party may request this determination to be reconsidered at an oral hearing inter partes.

10.  It would be appropriate to assess the plaintiff’s costs in respect of this application on a gross sum basis and, to this end, I would therefore direct the plaintiff’s solicitors to submit a bill of costs within seven days hereof and give leave to the 1^st and 2^nd defendants to submit their response within seven days thereafter.