TIONG KING SING v. SAM BOON PENG YEE AND ANOTHER

HCMP 1129/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1129OF 2015

(ON AN INTENDED APPEAL FROM HCA NO. 1517 of 2011)

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JUDGMENT 
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Hon Lam VP (giving the Judgment of the Court):

1.  On 2 March 2012, the plaintiff in HCA 1517 of 2011gave undertakings to the court, amongst other things, to refrain from causing any harassment to the defendants. Those undertakings became an order of the court on 22 February 2013. The defendants alleged that between 4 and 6 May 2014, the plaintiff committed acts which constituted a breach of that order. Application was made in HCMP 1401 of 2014 for leave to commence contempt proceedings against the plaintiff. That application was supported by an affirmation of the solicitor [“Cheng’s Affirmation”] for the defendants based on information he obtained. Ex parte leave was granted by To J [“the Judge”] on 4 June 2014.

2.  By a summons of 30 July 2014 in HCA 1517 of 2011 [“the Summons”], the plaintiff sought to strike out parts of Cheng’s Affirmation and to set aside the ex parte leave granted to the defendants on 4 June 2014.

3.  The matter was heard before the Judge on 19 December 2014 and in a judgment handed down on 21 January 2015, the Judge dismissed the summons of the plaintiff with costs.

4.  The Judge’s conclusion, set out at [45] of his judgment, was as follows:

“ In conclusion, I find that the ex parte leave was rightly granted in the first place. The First Letter and Second Letter issued by the Plaintiff’s solicitors after the application was filed do not undermine the Defendants’ case or render it obviously unfounded or oppressive. ...”

5.  The plaintiff sought leave to appeal against this decision and leave was refused by the Judge for the reasons he gave in his Reasons for Decision of 6 May 2015.

6.  The plaintiff now applies for leave to appeal from this court.

7.  There is no dispute that the threshold for granting leave is that an applicant’s intended appeal must have reasonable prospect of success.  The prospect of success has to be more than fanciful, though not having to be probable.

8.  Further, even though for cases in which such threshold is met, this court still has a discretion to refuse leave on other grounds, see Ho Yuen Ki Winnie v Ho Hung Sun Stanley HCMP 1009 of 2009, 24 August 2009 at [16]; CWG v MVF Ltd HCMP 2409 of 2013, 9 January 2014 at [13] and [18]; Ip Pui Lam Arthur v F Zimmern & Co HCMP 995 of 2014, 6 October 2014 at [9]; Lehmanbrown Ltd v Union Trade Holdings Inc HCMP 977 of 2015, 17 June 2015 at [5].

9.  In the present context, it seems to us that the main question in respect of the Summons should be whether the ex parte leave should be set aside.  If the leave is not to be set aside, the fact that there might be irregularities or other defects in Cheng’s affirmation could not be matters of great moment in the overall scheme of things.  In such circumstances, bearing in mind the general undesirability for  interlocutory appeal  to be pursued simply for some forensic purposes without any contribution to the resolution of the main dispute, procedural economy and the proper use of judicial resource and fairness between the parties, we are of the view that it would not be a proper exercise of our discretion to grant leave in this instance if we come to the clear and firm conclusion that the ex parte leave for committal should not be set aside.

10.  Having considered the submissions advanced on behalf of the plaintiff and those advanced on behalf of the defendants, we agree with the view of the Judge that there was sufficient evidence before him to warrant the grant of such leave and the non-disclosure of the letters from the solicitors for the plaintiff did not make any difference.

11.  The Judge said these at [41] and [42] of his judgment on 21 January 2015:

“ 41. The function of the court at the ex parte stage is to filter out obviously unfounded or oppressive applications for committal or those which have some suspicion of oppression about them. It is not concerned with finding whether committal proceedings are appropriate, which is a matter to be dealt with at the substantive hearing. It is not concerned with admissibility of evidence or whether the applicant can successfully prove his allegations against the alleged contemnor nor is the court concerned with the possible defence of the alleged contemnor or whether such defence will prevail: see Secretary for Justice and Choy Bing Wing. What the court has to do in this weighing exercise is to satisfy itself that the applicant has shown a prima facie case and that the application was not oppressive or has any suspicion of oppression. That is what this weighing exercise is all about. It does not require the court to weigh the relative strength of the parties’ case and make finding of fact and credibility of witnesses. Indeed, the court should not engage itself in a mini trial on affidavit evidence.

42. There is not much the First and Second Letters could have added to Cheng’s 12^th Affirmation or the Statement, except an explanation of the Plaintiff’s involuntary presence at the office of Chongqing Wijaya.  Whether the explanation is to be believed boils down to finding of fact and credibility to be determined at the substantive hearing of the application for committal.  These are not matters to be determined at the ex parte stage.   Furthermore, the explanation does not go that far as to destroy the fundamental basis of the Defendants’ case such that the ex parte application may be filtered out as having no chance of success.  The explanation has nothing to add to the weighing process at the ex parte stage.”

12.  Subject to what is said below, we agree with the Judge so far.  He went on to say at [44],

“ On the evidence before me, the Plaintiff has amply demonstrated a prima facie case. There is nothing to suggest oppression in the taking out of the application for leave. That an alleged contemnor has an explanation is something to be tested at the hearing of the substantive application. Taking out an application for ex parte leave, even with knowledge of such an explanation, which is disputed, does not amount to oppression. Not even Mr Shieh SC has suggested otherwise. In the circumstances, the information disclosed in the First Letter and Second Letter are not material or not relevant for the court’s consideration at the ex parte stage.”

13.  We have no quarrel with the finding that the seeking of ex parte leave could not be regarded as oppression.  We also agree that the disclosure of the First and Second Letter may not change the outcome in terms of the granting of leave.  However, in our judgment, it is at least reasonably arguable that the solicitors for the defendants should have shown these letters to the Judge after they have received the same.  The decision as to whether the explanations set out in those letters were material should be one for the Judge, not the solicitors for the defendants.  There is room for arguing that in these circumstances, the court should consider setting aside the leave.

14.  On the other hand, having regard to the relevant considerations discussed in Excel Courage Holdings Ltd v Wong Sin Lai (2014) 3 HKLRD 642, it would be arguable that leave should be re-granted.

15.  Unfortunately, after these questions being canvassed at the hearing of 3 July 2015 and time being given to the parties to reconsider their respective position, they could not reach any agreement on the way forward particularly in respect of the cost implications for the summonses in HCA 1517 of 2011 and the present application.  Whilst we are reluctant to grant leave for a satellite interlocutory appeal to be conducted, we have no power at this stage to deal with the costs order made by the Judge.  Hence, not without regret, we grant leave to the plaintiff to appeal.  Costs of this application shall be in the cause of the appeal.