SHINE GRACE INVESTMENT LTD v. CITIBANK, N A AND ANOTHER

HCMP 3177/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 3177OF 2014

(ON AN INTENDED APPEAL FROM HCCL NO. 28 of 2008)

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

1. This is an application for leave to appeal against a decision of Mimmie Chan J as the commercial judge in respect of the plaintiff’s specific discovery application in an action in the commercial list. The learned judge granted discovery on 22 October 2014. The defendants applied for leave to appeal before the judge. Leave was refused by the judge on 5 December 2014.

2. The defendants have not produced to us the transcript of the judge’s reasons for granting specific discovery.  Nor is there any written judgment.  We have, however, before us, the decision of the judge of 5 December 2014 when she refused leave.  In that judgment, the judge indicated she applied the wide Peruvian Guano test in determining relevance and she came to the view that the documents sought are relevant to the issues she identified there.

3. The application for leave is opposed by the plaintiff.  Counsel for the plaintiff put before us a statement in opposition pursuant to Order 59 Rule 2A(4).

4. We have read the documents filed in light of the submissions of the solicitors for the defendants of 5 December 2014, the draft Notice of Appeal and the statement of opposition on behalf of the plaintiff.

5. With respect, the defendants have not begun to show how the judge could be said to have gone clearly wrong in her exercise of what in essence was a case management power. As has been said in Shine Grace Investment Ltd v Citibank NA HCMP 258/2012, 2 August 2012:

“ Decision on specific discovery, especially when it is a decision by a judge in charge of the specialist list (the case is a matter in the Commercial List), is very much an exercise of discretion in case management.”

6. There is no suggestion that the judge had applied the wrong test in the exercise of her discretion. The arguments which the defendants wish to put forward in the intended appeal had been duly considered by the judge.  Despite that, the judge came to the view that the documents are relevant.

7. An appeal, particularly an interlocutory appeal against the exercise of discretion, is not the forum for a re-running of arguments on relevance which had been duly rejected.  An appellant has to show that the judge had clearly gone wrong.  Based on what has been presented to us, we do not find the defendants have any reasonable prospect of success in meeting this threshold.

8. The application for leave is dismissed.  Likewise, the application for stay of execution pending appeal must also be dismissed.  For the avoidance of doubt, the interim stay granted by the Chief Judge on 5 December 2014 is lifted.

9. The defendants must pay the costs of the plaintiff in this application.  The plaintiff’s solicitors have not lodged a statement of costs in accordance with the usual practice in this kind of application set out in the direction of the Chief Judge of 10 August 2012, see Islamic Republic of Iran Shipping Lines v Phiniqia International Shipping LLC [2015] 1 HKLRD 44.  We would provisionally fix such costs at $60,000. Such costs order nisi will become absolute within 7 days.