CHOW PO TAI v. CHEN CAO LIYAN AND ANOTHER

HCA 2379/2024

[2026] HKCFI 1084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2379 OF 2024

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D E C I S I O N

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Introduction and Background

1.  On 14 October 2025, I heard: (1) a Summons dated 9 December 2024 (“the Continuation Summons”) where the Plaintiff (“P”) sought the continuation of the Ex Parte Order granted on 4 December 2024 as amended (“the Amended Ex Parte Order”) which was last continued on 25 July 2025; and (2) a Summons dated 1 September 2025 where P sought a variation of the Amended Ex Parte Order (“the Variation Summons”). At the end of the hearing, I refused to continue the Amended Ex Parte Order nor re-granted it, and as a result, it was not necessary to consider the Variation Summons. After orally giving my decisions, counsel for P made an oral application for interim-interim injunction in terms of the Amended Ex Parte Order which was refused by me. My reasons are set out in the Decision dated 14 October 2025 (“the Decision”): see [2025] HKCFI 5016. For ease of reference and consistency, save as otherwise herein indicated, I shall adopt the same abbreviations and definitions in the Decision. This decision should be read together with the Decision 

2.  By Summons dated 27 October 2025 (“Leave to Appeal Summons”), P seeks to appeal against this court’s order dismissing P’s applications for: (1) the re-grant of the Amended Ex Parte Order; (2) the variation of the Amended Ex Parte Order; and (3) interim-interim injunction.

3.  Parties agreed that the Leave to Appeal Summons be disposed of on paper following the agreed timetable for lodging of submissions.

Applicable Principles

4.  The test for granting leave to appeal against an interlocutory order of the Court of First Instance is trite and not disputed. Under s.14AA(4) of the High Court Ordinance, Cap.4 (“HCO”), leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involves the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. See e.g. Xu Hongbiao v Oasis Investment Group Limited & Ors [2024] HKCA 854 at §41 per Kwan VP.

5.  Moreover, insofar as a challenge is made to a judge’s exercise of discretion, it is well-established that the appeal court is not to exercise an independent discretion of its own. Its initial function is one of review only. It is not enough to suggest that the judge assigned inappropriate weight to one (or several) factor(s) in the balancing exercising that led him to exercise his discretion as he did. The appellate court will not interfere simply because it might take a different view from the judge as to the weight assigned to any given factor. However, it may set aside the judge’s exercise of discretion if it can be shown that the judge was plainly wrong in the sense that, for example, he had acted on wrong principles, taken into consideration irrelevant factors, ignored relevant factors or the decision is outside the generous ambit within which reasonable disagreement is possible: see e.g. ibid at §43.

Discussion

6.  Firstly, in P’s Skeleton Submissions lodged in support of the Leave to Appeal Summons, it was submitted that I erred in law to in effect make a final determination that P and D1 are close relatives solely on affidavit when this was an issue seriously contested by both sides. Reference was made to and reliance on Dormeuil Frères SA & Anor v Nicolian International (Textiles) Ltd [1988] 1 WLR 1362 and Sino Wood Investment Limited v Wong Kam Yin (unrep) HCA 307/2002, 23 December 2002, the latter case where A Cheung J (as he then was) at §30 referred to the “undesirability of seeking to resolve serious disputes of fact regarding alleged material non-disclosure at the inter partes stage”.

7.  However, as noted by DHCJ H Au-Yeung (as he then was) in HKCOLO.NET Limited v Hong Kong Telecommunications (HKT) Limited [2023] HKCFI 138, in Sino Wood Investment Ltd, it was also pointed out what was said in Dormeuil should not be taken to the extreme and be read subject to the subsequent case law so as to deny an aggrieved defendant a fair chance to persuade the court on clear evidence, if he could, that the ex parte order was obtained by material non-disclosure. Furthermore, in Tate Access Floors Inc & Another v Boswell & Others [1991] Ch 512, Browne-Wilkinson V-C said it was clear that he was in error in Dormeuil in thinking that normally the question whether or not there has been a failure to disclose is not appropriate to be dealt with at the interlocutory stage but it may be that investigation of the circumstances in which the ex parte order was obtained should take place at an interlocutory stage only where it is clear that there has been a failure to make a material disclosure or where the nature of the alleged failure is so serious as to demand immediate investigation. See §§122-124.

8.  In the Decision, I did not make any factual conclusion that P and D1 are close relatives and it was not necessary to do so. Rather, I was satisfied from the evidence that it was clear that there was non-disclosure or misrepresentation on the true nature and proximity of the relationship between P and D1, and this was material as its effect was to give a seriously different flavour to P’s case: see the Decision, §§12-17. I specifically referred to the Will and various photographs of P and D1 but also held my view was also supported by the evidence as set out in the skeleton submissions of D1 and D2 which I had not set out in the Decision. I also referred to the fact in Chow 2^nd, P is also prepared to say that it could have been a fact that Ds were introduced to her prior to 2010 which plainly contradicted Chang 1^st that P only knew of D1 “years ago through relatives gathering” and it was only around 2011 when P’s husband passed away “showed more caring to P”. In the Decision at §16, I expressly stated that I was satisfied from evidence filed that it is clear that there was material non-disclosure or misrepresentation such that it is appropriate to consider the issue of material non-disclosure at this stage rather than dealing with it at the trial of this action by referring to HKCOLO.NET Limited, §§123-125. Plainly, it is not reasonably arguable that I erred in law.

9.  As for my finding that there was material non-disclosure on P and D1’s relationship and whether to re-grant the Amended Ex Parte Order, it is a matter within my discretion which has not been demonstrated to be plainly wrong in the sense that, I had acted on wrong principles, taken into consideration irrelevant factors, ignored relevant factors or the decision is outside the generous ambit within which reasonable disagreement is possible.

10.  Secondly, it was submitted that in respect of the second material non-disclosure found by me in not disclosing that the sum of HK$2,715,927.08 was transferred to P’s own account and not Ds’. P relied on the fact that Chang 1^st had stated that it is not clear whether the BOCHK amount and the HSBC Amount were actually transferred to D1 and/or D2, and in any event would not add a new flavour to P’s case when other transfers out were sufficient to support P’s case of fraud by Ds. However, these are all arguments I had considered but rejected in the Decision, §§18-20. As held by Kwan JA (as she then was) in 秦錦釗 及 香港特別行政區 [2018] HKCA 167 at §8, it would be futile for an appellant to rehearse the contentions that were rejected by the first instance judge. Rather, the appellant should focus on the first instance judge’s reasoning, pinpoint the error and the basis for saying that the judge has erred. P has not pinpointed any error or basis for saying that I had erred to find there was a material non-disclosure. See also Symphony Partners Ltd v Fullerton Bay Investment Ltd [2018] 4 HKLRD 264 at §33 per Lam VP.

11.  Thirdly, it was submitted that I erred in law in not granting the interim-interim injunction. However as held ibid, in the context of  interim-interim relief which is meant to be an urgent temporary stop-gap measure, the Court of Appeal will only intervene on the rare occasion where it is extremely plain that the judge has erred. See also China Shanshui Cement Group Limited & Ors v Zhan Caikui & Ors [2018] HKCA 409 at §15.

12.  Apart from regurgitating the matters submitted at the hearing, P has not pinpointed any errors in not granting the interim-interim injunction. The alleged “long game” and well-planned scheme of Ds, misappropriations of P’s assets and belated acceptance of service were all considered by me but as explained in Decision, §24, I also had regard to other matters that demonstrate D1’s actions were not consistent with someone who intends to evade justice by disposing of and concealing assets to make herself judgment-proof. I did not consider the matters relied on by P established a risk of dissipation demonstrated by solid evidence: see the Decision, §29.

13.  In all, I am of the view that the intended appeal has no reasonable prospects of success.

Disposition and Orders

14.  Accordingly, the Leave to Appeal Summons is dismissed. I see no reason why costs should not follow the event. P should pay to Ds forthwith the costs of the Leave to Appeal Summons to be summarily assessed on paper. Ds should lodge and serve a Statement of Costs (limited to 3 pages) within 7 days from the handing down of this Decision and P should lodge and serve any objections (limited to 3 pages) within 7 days thereafter.