Essilor Manufacturing (Thailand) Co., Ltd v. Wong Kam Wai ( t/a Sun Wai Lok HK International Co) and Others

HCA 159/2020

[2020] HKCFI 547

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 159 OF 2020

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Before: Deputy High Court Judge MK Liu in Chambers

Date of Hearing: 20 March 2020

Date of Decisions: 20 March 2020

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DECISION

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1.By a summons dated 13 March 2020, the plaintiff (“P”) applies for, inter alia, an order to continue 2 ex parte injunctions granted by the court on 24 January 2020 (“the injunctions”) until trial or a further order made by the court. Whether the court should allow the application for a continuation order is the focus of the hearing today.

2.In each of the injunctions, it is expressly provided that the duration of the order is up to and including 7 February 2020 (the return date), unless before then the order is varied or discharged by a further order of the court.  We now all know that in view of public health consideration, there has been a General Adjourned Period (“GAP”) since 29 January 2020.  Due to GAP, the hearing on the return date as specified in each injunction order did not take place as scheduled.

3.As a matter of fact, P has not made any application before 7 February 2020 to prolong the life of the two injunction orders.

4.Mr Kwong for the 10^th defendant (“D10”) submits that in the absence of any order extending the duration of the two injunction orders, the injunctions have expired and ceased to have any effect immediately after 7 February 2020.  As a result, there is nothing to be continued after 7 February 2020.  The continuation application made by P in the summons is misconceived.

5.Mr Hughes for P submits that due to GAP, in the absence of any order varying or discharging the injunction orders, the injunctions remain in force up to and including the adjourned return date.  Mr Hughes relies upon Hong Kong Civil Procedure 2020, Volume 1, §29/1/63 to support his position.  Mr Hughes submits that during GAP, P is simply not in a position to re-fix the return date hearing, and there can only be a return date hearing after GAP.

6.With respect, I am unable to accept Mr Hughes’ submissions.  The duration of each injunction order has been clearly and unambiguously set out in the order.  In the absence of any order prolonging the life of the injunction, the duration of the injunction cannot go beyond 7 February 2020.  The passage in Hong Kong Civil Procedure 2020 does not lend any support to Mr Hughes’ submissions at all.  As a matter of law, Mr Hughes’ submissions cannot be correct.  During GAP, the judiciary has from time to time issued press releases.  In each and every press release, the judiciary has said that urgent matters would still be handled by the court during GAP.  To obtain an order to extend the duration of each injunction order beyond 7 February 2020 is certainly an urgent matter, and an application for such an extension order can be made during GAP.  P’s legal representatives did not do that.  As a result, the 2 injunction orders have expired immediately after 7 February 2020.  

7.I agree with Mr Kwong that there is nothing which can be continued now.  The continuation application is misconceived.  I dismiss paragraph 1 of the summons.

8.Mr Hughes seeks 2 new injunctions, the terms of which are same as the 2 injunctions which have already expired. I am of the view that this application for new injunctions cannot be an inter partes application, for there has not been any inter partes summons for this application.  I also cannot grant the injunctions on an ex parte basis.  An ex parte injunction can only be made if there is urgency or secrecy.  The status quo now is that each and every defendant has already had notice of these proceedings for a long time, and there has been no injunction in place for one and a half month.  In these circumstances, there cannot be any urgency or secrecy justifying an application for an ex parte injunction.  If P want to have an injunction, P would have to make an inter partes application for a new injunction.

9.Since there is no injunction in place now, I do not see any urgency in the other applications made in the summons.   I make no order on these applications.  P may take out a summons to make these applications at a later time if P still intends to make these applications. There is another summons before me seeking leave to effect service on the 13^th defendant by substituted service.  For the same reason, I would make no order on that summons.

10.As to costs, I am of the view that only D10 was an opposing defendant before this hearing.  Other defendants had no objection before today.  The 18^th defendant (“D18”) claims that it was also an opposing defendant before this hearing.  In my view, D18 was seeking variation of the injunction orders before this hearing, and was not entirely opposing P’s continuation application.  The only defendant opposing P’s continuation application before today was D10.  The point that the 2 injunction orders have expired immediately after 7 February 2020 was raised by D10 and not by any other defendant.  In these circumstances, in my view, as between P and Ds (save and except D10), in relation to costs of the summons, I would make no order as to costs.  As to the costs of D10, I would order that costs of the summons be paid by P to D10 and be summarily assessed.  Counsel for D10 does not seek a certificate for 2 counsel.  D10 shall provide a bill of costs for summary assessment to the court and serve the same on P within 7 days, and P do provide a written reply to the said bill of costs to the court and serve the reply on D10 within 7 days thereafter.

Mr Sebastian Hughes, instructed by Herbert Smith Freehills, for the plaintiff

Mr Alan Kwong & Mr Howard Wong, instructed by Franki Ho & Associates, for the 10^th Defendant

Mr Kin Lau, instructed by Gallant, for the 18^th Defendant

Mr David Chen, instructed by Lu & Partners LLP, for the 23^rd & 24^th Defendants

Mr Yuen Hine Man of Chris H. M. Yuen & Co, for the 34^th Defendant

Mr Rickey K Y Li, instructed by Lo, Wong & Tsui, for the 45^th Defendant

The appearance of KCL & Partners, for the 26^th & 27^th Defendants, being exempted

The appearance of Wat & Co, for the 40^th Defendant, being exempted

The 1^st to 9^th, 11^th to 17^th, 19^th to 22^nd, 25^th, 28^th to 33^rd, 35^th to 39^th, 41^st to 44^th Defendants being absent