A AND ANOTHER v. C AND OTHERS

CACV 1200 /2025

[2025] HKCA 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1200 OF 2025

(ON APPEAL FROM HCA NO 2315 OF 2025)

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REASONS FOR JUDGMENT

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

1.  We have before us an ex parte summons issued by the plaintiffs on 16 December 2025, seeking leave to appeal the decision of Deputy High Court Judge Sheila Ahuja, KC made on 15 December 2025 (“Decision”)  and an order that the plaintiffs’ appeal be heard urgently if leave to appeal be granted.

2.  By the Decision, the judge dismissed the plaintiffs’ applications for (1)  worldwide Mareva injunctions against the six defendants prohibiting them from disposing of assets up to the value of US$46 million odd; (2)  an order requiring the 1^st defendant to deliver up for inspection, imaging and copying the specified electronic data storage devices; and (3)  a prohibition order against the 1^st defendant that he be prohibited from leaving Hong Kong for one month from the date of the order.

3.  We are satisfied on the special circumstances of this case that we should hear the ex parte summons notwithstanding that an application for leave to appeal has not been made to the judge when she made the Decision at 7 pm after an oral hearing which lasted about 90 minutes.

4.  We granted leave to appeal and treated the hearing as that of the appeal proper.  These are the reasons for our judgment.

5.  We have been provided a “File Note” of the plaintiffs’ solicitors which is a fairly detailed transcript of the 90-minute hearing.  The judge asked pertinent questions in the course of Mr Manzoni, SC’s submissions.  At the end of his submissions, the judge indicated that having considered his submissions and the files presented, she granted an order relating to anonymity as she understood the reasons for it.  However, she denied the remaining orders sought and ordered that costs be reserved.

6.  Mr Manzoni inquired with the judge whether her ladyship intended to give reasons for the Decision, to which the judge replied:

“Don’t have to give reasons on an ex parte but free to proceed as a result of this matter.”

7.  This is highly unsatisfactory.  There are some kinds of interlocutory applications, mainly of a purely procedural kind, upon which a judge exercising his discretion on some question such as whether a matter should be adjourned or expedited or extension of time be given to take some procedural step, may properly be made without giving reasons[1], despite the provision in Order 42 rule 5B(1)[2]. The present situation is just not one of those.

8.  Reasons for present purpose need not be elaborate.  If they are apparent from the exchanges of the judge with counsel in the course of argument, the judge may simply adopt them as reasons for judgment.  That is not the case here.  The plaintiffs do not know why their applications were dismissed and are prejudiced in pursuing an effective appeal. The appeal court does not have the benefit of the judge’s reasoning and cannot sensibly assess whether the judge exercised her discretion rightly or wrongly. Though sitting as a court of review, we have been driven to exercise the discretion de novo because the urgency of the matter does not make it viable to follow the practice suggested in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at §25 and remit the case to the judge with an invitation to provide reasons for the Decision.

9.  As stated by Godfrey JA in Lea Tai Property Development Ltd v The Incorporated Owners of Leapont Industrial Building, CACV 137/1995, 14 September 1995 at p 2:

“ … the right course for a judge of first instance to take on an application made to him for an interlocutory injunction, is to give his reasons (they need be stated only briefly)  for granting or refusing it.”

10.  The importance of informing the parties of the reasons why the court decided in a particular way cannot be overemphasised.  In Lai Sau-lin v World Speed Co Ltd [1990] 2 HKLR 317 at 321F to I, a case where the judge did not give reasons for granting a Mareva injunction, Fuad VP endorsed these observations by Cons JA in an unreported decision:

“The giving of reasons is one of the fundamentals of good administration: Breen v. Amalgamated Engineering Union [1971] 2 QB 175 at 191. Even more so is it one of the fundamentals of a good system of justice. Lord Denning would have thought that went without saying. And it matters not whether that decision is final or interlocutory or in what particular court it is given. The principle holds good for all levels of adjudication. Parties are entitled to know by what the judge was influenced, particularly the party who has lost. As Mr. Megarry (as he then was)  said:

‘… no defeated litigant should leave an English court with the feeling that the judge has failed to appreciate his case. This view is reinforced by the fact that under the common law system the judgment is no mere formal document, but a reasoned speech, often of considerable length, explaining just what are the facts, the issues, the rival contentions and the reasons for the result.’ (Lawyer and Litigant in England, Hamlyn Trust Lecture, 1962)

This does not mean that the judge must reduce his reasons to writing.  In the High Court there will usually be solicitor or counsel present who will take a note of what the judge says, and should it ever afterwards be necessary to refer to it, counsel will submit that note to the judge for his agreement.  Nor does it mean a lengthy speech on each and every occasion.  That would be quite unnecessary in most interlocutory matters, where all that is needed is more indication of the ‘why’ as well as of the ‘what’.”

11.  The court is not exempt from having to give reasons in ex parte applications.  The judge’s failure to give reasons for the Decision is a valid ground of appeal.  We therefore gave leave to appeal.

12.  As mentioned, we exercised the discretion de novo as regards the orders sought by the plaintiffs.  We are satisfied that the plaintiffs have established a good arguable case of deceit, breach of fiduciary duty and unlawful means conspiracy and a real risk of dissipation of assets to justify the granting of an ex parte worldwide Mareva injunction against all six defendants.  We granted this injunction, with a return date of 19 December 2025, which would need an abridgment of time from the court below for the issue of the inter partes summons, as we are not inclined to give a return date on 2 January 2026.  

13.  We declined to make ex parte orders as regards the proprietary injunctions sought against all six defendants and a prohibition order against the 1^st defendant.  Suffice it to say we do not consider the proprietary injunctions necessary for the plaintiffs’ protection at this stage and the present materials placed before us are not sufficiently compelling to warrant such injunctions be granted.  We also have reservations about making a prohibition order against the 1^st defendant in the circumstances of this case.

14.  We are persuaded that the very special circumstances justify the making of an order for delivery up, inspection, imaging and copying of the specified electronic data storage devices in the 1^st defendant’s possession or custody.  We made one change to the draft order to delete the provision that the image of the plaintiffs’ electronic data storage devices is to be provided by the supervising solicitor to the plaintiffs’ solicitors.

15.  As in the court below, we made an order that the names of the plaintiffs and defendants be anonymised, and the court file in relation to the proceedings in this court is not available for inspection by third parties without leave of this court.

16.  We ordered the costs of the ex parte summons and this appeal be reserved.