PCCW - HKT TELEPHONE LTD AND ANOTHER v. DAVID MATTHEW MCDONALD AITKEN AND ANOTHER

CACV 194/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 194 OF 2008

(ON APPEAL FROM HCA NO. 1089 OF 2008)

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J U D G M E N T

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Hon Stone J:

1. On 21 August 2008, this court delivered itself of a judgment declining the injunctive relief requested by the plaintiffs, PCCW, and (by majority) dismissing the plaintiffs’ appeal from the judgment of Deputy High Court Judge Au, dated 10 July 2008.

2. At the end of that judgment, and it must be said in part in the response to the submissions made by Mr Sussex at the end of the last hearing, although the court had dismissed the application for continuation of the very wide injunctive relief then in place, nevertheless it granted an interim stay of the order dismissing the appeal for a period of six working days from the date of handing down of this judgment.

3. The learned vice-president (at paragraph 210 of his judgment) indicated that the plaintiffs should make such further application as may be advised within this period.

4. This morning, that is, the morning of Friday, 29 August, this court has been seized with the summons issued by the plaintiffs consequent upon that earlier judgment; this summons is dated 25 August 2008.

5. In moving this application, Mr Whitehead SC (who appeared below before Deputy Judge Au on behalf of the plaintiffs but by reason of unavailability not upon the substantive appeal from that decision), asked for a further brief extension of the current six-day period, which represented continuing the interim stay of our order dismissing the plaintiffs’ appeal, for, in effect, the plaintiffs to get its house in order and to do that which in my view it should have done already, which formally was to mount an application for leave to appeal to CFA, together with such collateral relief as may have been thought appropriate.

6. It is slightly surprising, in light of the way in which the judgment of 21 August 2008 was couched, that no such application for leave as yet formally has been placed before us, although it is fair to record that, in his reply submissions this morning, out of an abundance caution Mr Whitehead saw fit to make an oral application on his feet. 

7. The plaintiffs now have failed twice in their attempt to maintain an injunction which, in the majority judgment of this court, has been severely criticised for its width and lack of specificity.  And what has happened this morning, by means of the application as ultimately mounted by Mr Whitehead, is that the plaintiffs effectively are seeking to maintain the present extraordinarily wide injunctive relief pending yet another attempt – I pause to say that one does not know how long such attempt will continue – to run before the CFA the same argument which this court specifically has rejected, as indeed has the learned deputy judge below.

8. It seems to me that to allow the plaintiffs the further extension requested would result in an unsuccessful appeal effectively being dealt with as successful and, for my part, in the exercise of my discretion, I would decline to exercise any discretion to permit continuation of such relief by the procedural backdoor when, at least in terms of the majority view of this court, such relief could not be obtained by the substantive front door.

9. Accordingly, notwithstanding the skill with which Mr Whitehead couched his application, I would dismiss the plaintiffs’ application this morning before this court for a further extension of the six-day interim period, which expires at the end of today.

Hon Tang VP:

10. I agree.  I have nothing to add.

Hon LePichon JA:

11. I would have been sympathetic to the application but for the fact that, to the surprise of, I think, all members of this Court, no application for leave to appeal to the Court of Final Appeal had been filed to be heard in conjunction with today’s application.  The explanation that has been given really is no explanation and, in those circumstances, I do not think it would be right to grant the remedy sought.