ZIMMER SWEDEN AB v. KPN HONG KONG LTD AND ANOTHER

HCA 2264/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2264 OF 2013

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D E C I S I O N

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1.  In a decision handed down on 30 April 2015, I found in the defendants’ favour on the determination of a preliminary issue (and consequently dismissed the plaintiff’s summary judgment application) (“the said decision”).

2.  Not satisfied with the said decision, the plaintiff applies for leave to appeal against it.

3.  The background leading to, and the nature of this action, has been summarized in the said decision, and will not be repeated.

4.  It should be apparent from the contents of the said decision that I felt bound to reach the said decision adopting the test set out, and the manner in which that test was applied, in the two court of appeal decisions (chronologically):

(a) Pacific Electric Wire & Cable Co Ltd v Harmutty Ltd [2009] 3 HKLRD 94;

(b) A-1 Business Ltd v Chau Cham Wong Patrick [2009] 5 HKLRD 579

(especially the A-1 decision) (see in particular para 8, 10 to 12 and 14, the said decision).

5.  In gist, in contending that leave to appeal should be given on the ground of reasonable prospect of success in the intended appeal, the plaintiff submits that I have erred in:

(1) having misread the above court of appeal decisions (especially the A-1 decision);

(2) failing to find that the above court of appeal decisions are distinguishable on the facts.

6.  With respect, I do not consider the above submissions to have merit.

7.  Relying on para 20 and 21 of the A-1 decision, the plaintiff argues that the passages of the court of appeal judgment quoted in the said decision are not the ratio decidendi of the A-1 decision.  Instead (so the plaintiff asserts), the A-1 decision was based on an express plea of dishonesty (which does not feature in this action).  I disagree; the language of those paragraphs (especially para 20 thereof) indicates the contrary.  It reads:

“Even if one is to view the case strictly from the plaintiff’s claim, the plaintiff’s pleaded case also clearly involves allegations of dishonesty … ” (emphasis supplied).

That the paragraph starts with the phrase “even if” shows that the court of appeal intended the “other” approach (that the plaintiff’s claim based on misappropriation cannot be viewed in isolation, and divorced from the plaintiff’s response to the defence (para 15 thereof)) to be primary approach.

8.  I also disagree with the other ground in support of this application, namely, that the above issue involves a point of general importance.  The relevant test has been formulated clearly by the court of appeal.  The manner in which the test is to be applied has also been made clear.

9.  Leave to appeal is therefore refused.

10.  The parties agree that the costs of this application should be the defendants’ if it is determined in their favour.  There will accordingly be a costs order that those costs be paid by the plaintiff to the defendants.

11.  I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(a) the defendants be at liberty to lodge with court and serve a statement of costs within 7 days from today;

(b) the plaintiff be at liberty to lodge with court and serve a statement of objections within 7 days thereafter.