Yanfull Investments Ltd v. Datuk Ooi Kee Liang

CACV 114/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 114 OF 2016

(ON APPEAL FROM HCA NO 687 OF 2015)

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BETWEEN

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Before:  Hon Lam VP, Kwan JA and Macrae JA

Dates of Written Submissions:  26 April, 10 and 17 May 2017

Date of Judgment: 2 June 2017

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.This application was brought by the plaintiff, Yanfull Investment Limited (“Yanfull”), for leave to appeal to the Court of Final Appeal.

2.On 15 March 2017, we handed down our judgment (“CA Judgment”) dismissing Yanfull’s appeal against the decision of L Chan J on 15 April 2016, by which the judge struck out the action against the defendant, Datuk Ooi Kee Liang (“Ooi”).  The judge had concluded there were no serious questions to be tried in the claims in deceit and the claims in malicious prosecution and abuse of the civil procedure should be struck out as time barred.

3.Four questions were framed in the notice of motion as questions of great general or public importance:

“(1) Does the common law of Hong Kong include either or both of the torts of abuse of civil proceedings or malicious prosecution of civil proceedings and if it does, then, for the purposes of either or both torts, does the making of an order within such proceedings that there be an enquiry as to whether or not a defendant has incurred damages constitute the final determination of those proceedings in favour of the defendant?

(2) Where such a tort is practiced by a foreign plaintiff against a Hong Kong company, within a Hong Kong Court applying Hong Kong law, can the Hong Kong Court be forum non conveniens?

(3) Within civil proceedings, is an undertaking in damages which is provided by a party fraudulently seeking to obtain an interlocutory injunction against a defendant, incapable of supporting a Deceit Action brought by that defendant upon the basis that he had relied to his detriment upon that undertaking, either because of its special status as an undertaking to nobody but the Court or because of the “witness immunity” rule?

(4) Is a Court, acting on its motion and in the absence of any party’s application, entitled, without notice to the plaintiff, to dismiss a Deceit Action on the ground of the Court’s perception, formed independently of the plaintiff’s pleaded case, as to the likely conduct of the plaintiff who was deceived?”

4.The questions would be considered in the order set out above.

5.Yanfull also relied on the “or otherwise” limb.

Question (1)

6.This question has two parts.

7.Regarding the first part (whether the torts of abuse of civil proceedings and malicious prosecution of civil proceedings are part of the common law of Hong Kong), Mr Barlow cited authorities in the House of Lords[1], the Privy Council[2], the Supreme Court[3] and in Hong Kong[4] in support of the proposition that there is no decision of the Court of Final Appeal on this question, that the recent UK authorities held the torts are available by narrow majorities, and that the Court of Appeal decisions in Hong Kong recognised these are developing torts and there is current debate whether these torts should embrace the abuse of civil proceedings generally.

8.This is an entirely academic question, as it was decided in the CA Judgment that the judge was right to strike out the claims of abuse of civil proceedings and malicious prosecution of civil proceedings on limitation grounds.

9.For the second part of the question (whether the making of an order for enquiry in damages would constitute identifiable damage for the cause of action to accrue), Mr Barlow repeated his submissions on appeal which we have rejected[5], applying as the judge did, the statements of McHugh NPJ in Kensland Realty Ltd v Tai, Tang & Chong (2008) 11 HKCFAR 237 at §§157 and 160.  We do not think his submissions are reasonably arguable.

10.We refuse to grant leave to appeal on question (1).

Question (2)

11.The CA Judgment[6] made clear it was not strictly necessary to consider whether the action should be stayed for forum non conveniens and this was dealt with obiter.

12.Hence, question (2) is also academic, not to mention we do not think Mr Barlow’s submissions are reasonably arguable, for the reasons given in the CA Judgment[7]. We refuse to grant leave to appeal.

Question (3)

13.Again there are two parts to this question, to address the two main reasons in the CA Judgment why it was held that the claim in deceit founded on the Undertakings Representations is plainly bad, namely, that an undertaking in damages does not give rise to a cause of action[8], and the witness immunity rule[9].

14.We are not persuaded the submissions of Mr Barlow to the contrary are reasonably arguable.  We refuse to grant leave for this question.

Question (4)

15.This question was apparently directed at the holding that there was no serious question to be tried in the claim in deceit based on the Consent Judgment Representations[10].

16.The arguments advanced by Mr Barlow in respect of this question were not raised in the appeal, but he made similar arguments when he complained that the judge acted without jurisdiction and in disregard of settled principle in dismissing the action without notice to the parties and without affording them an opportunity to be heard on the issue of limitation.  They were rejected for the reasons given in the CA Judgment[11].

17.We do not consider his submissions reasonably arguable.  Besides, the question is fact specific. It is not appropriate to grant leave.

“Or otherwise” limb

18.Mr Barlow recognised the practice of the Court of Appeal is to leave arguments on the “or otherwise” limb to be considered by the Appeal Committee of the Court of Final Appeal.  He has not advanced any argument here but merely reserved his position.

Order

19.We dismiss Yanfull’s notice of motion for leave to appeal.  We order Yanfull to pay the costs of Ooi of this application, which we assess summarily at $188,500.

Written submissions by Mr Barrie Barlow SC and Mr David Chen, instructed by Hogan Lovells, for the Plaintiff (Appellant)

Written submissions by Mr Kenny C P Lin and Mr Lincoln Cheung, instructed by YTL & Co, for the Defendant (Respondent)