Cosimo Borrelli As Trustee of the Sfc Litigation Trust v. Allen Tak Yuen Chan and Others

HCMP 1987/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1987 OF 2016

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D E C I S I O N

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1.This is an application for leave to appeal against my decision made on 15 May 2017, refusing the application by the 2^nd to 4^th Defendants to set aside the ex parte Leave Order and the Originating Summons relating to the alleged contempt of a breach of a Mareva injunction.

2.The background of this case and my reasons for refusing the setting aside application have been fully set out in my written decision handed down on 15 May 2017, and I do not want to repeat the same here.

3.For the purpose of this application, I would adopt the same abbreviation that are used in the previous written decision. 

4.There is no serious dispute that there have been a “mischaracterisation” of the 2^nd to 4^th Defendants’ conducts as breaching the Mareva order itself in the Statement and the Originating Summons.  However, I took the view that the sufficient particulars of the charge had been provided in the Originating Summons and the Statement.  The 2^nd to 4^th Defendants should not have any doubt as to the details of the charge against them. 

5.I also did not accept that the Leave Order had been granted on the wrong basis, as the judge dealing with the ex parte application must have read the Statement as a whole, and she should not have had any misunderstanding about the true basis of the complaints against the 2^nd to 4^th Defendants.

6.Despite the aforesaid, I also acknowledge that there are some authorities emphasising the penal nature of contempt proceedings and require strict procedural compliance with the procedural rules. 

7.Under such circumstances, the Court of Appeal should be invited to consider whether my decision is right, and perhaps to give further guidance relating to the procedural requirements for contempt proceedings.  Hence, I grant leave to appeal on such basis.

There is also another amendment summons taken out after the handing down of my written decision, but both parties agree that it would be more desirable for me to deal with the amendment application after the hearing of the intended appeal.  I therefore adjourn the amendment summons pending the determination of this appeal. 

Mr Timothy Kentish, of Lipman Kara, for the Plaintiff

Mr Kenneth Shum, instructed by C Y Tsang & Co, for the 1^st Defendant

Ms Roxanne Ismail, SC and Mr Julian Lam, instructed by K B Chau & Co, for the 2^nd to 4^th Defendants