EMAGIST ENTERTAINMENT LTD v. NETHER GAMES (HONG KONG) LTD AND OTHERS

HCA 1659/2012

[2023] HKCFI 2358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1659 OF 2012

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(By Original Action)

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(By Counterclaim dated 3 May 2013 as amended on 14 July 2015)

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(By Re-Amended Counterclaim dated 24^th December 2018)

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DECISION

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1.  In this Decision, I will adopt the same abbreviations that I used in the Judgment handed down on 28 March 2022 and the Decisions on the Uplift and Release Application and Stay Application handed down on 24 February 2023 (“the Decisions”).

2.  After the trial in this action, I ruled in favour of the Emagist Parties and granted judgment in favour of them.  After the handing down of the Judgment, the Emagist Parties made the Uplift and Release Application whilst the ART Parties (which includes Simon) took out the Stay Application to stay the execution of the Judgment pending appeal.  I ruled both applications in favour of the Emagist Parties.  The ART Parties now seek leave to appeal against the Decisions on these applications.

3.  The background of this case and my reasons for the Decisions have been fully set out in the Judgment and the Decisions and I do not want to repeat the same here.

4.  There is no dispute about the legal principles governing leave to appeal as summarized by Chow J (as he then was) in Astro v First Media[1].

5.  I have considered the written submissions of Mr Chau, counsel for the ART Parties.  There is nothing in his submissions to say why the appeal against the Judgment is not a challenge against my findings of fact in the trial and what mistakes I had made in arriving in these findings.  As rightly observed by the solicitors for the Emagist Parties, I found as a matter of fact that the parties had not made the Sun Chiu Kee Agreement which is the bedrock for the ART Parties’ claim of partnership.  The authorities cited by the ART Parties are of no assistance to their challenge of the finding that there was no partnership.  There is also no submission on why I was erroneous in finding that there was no Sun Chiu Kee Agreement.  With such factual finding, the partnership claim of the ART Parties is likely to fail on appeal.

6.  It is trite law that, unless the findings on fact are plainly wrong or there is any palpable error in making these findings, the appellate court would be slow to disturb the findings of fact made by the trial court. Since the Defendants have not met the threshold of establishing some merit in the appeal, the leave application should be refused on such ground alone.

7.  For the risk about dissipation of assets, the Defendants are just repeating their allegations against Boniface made in support of the Stay Application.  I have already dealt with these arguments in the Decisions.  The ART Parties have not advanced any argument in substance as to why I was wrong in such analysis.  I agree with the observation made by the solicitors for the Emagist Parties that the Defendants are only repeating their allegations made previously in the Uplift and Release Application and the Stay Application, and all my criticisms against the case of the ART Parties “explained meticulously in the Decisions and the Judgment were simply brushed aside”.  Hence, I dismiss the application of the ART Parties for leave to appeal against the Decisions.

8.  The Emagist Parties should get the costs of this leave application.  The Emagist Parties ask for such costs to be taxed on an indemnity basis with summary assessment.  Despite the aforesaid observations, I do not find that the leave application is so unreasonable that warrants the payment of costs on a higher basis.  As the ART Parties have not been given the opportunity to reply to the Statement of Costs of the Emagist Parties and there would be a proper taxation in any event, I refuse to tax the costs on a summary basis.  Hence, I only order the costs of the leave application be to the Emagist Parties to be taxed if not agreed.