Saif Partners Ii L P and Another v. Joe Zhixiong Zhou

CACV 625/2020 & CACV 190/2021
(Heard Together)

[2022] HKCA 659

CACV 625/2020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 625 OF 2020

(ON APPEAL FROM MISCELLANEOUS PROCEEDINGS NO. 208 OF 2020)

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CACV 190/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 190 OF 2021

(ON APPEAL FROM MISCELLANEOUS PROCEEDINGS NO. 208 OF 2020)

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D E C I S I O N

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I.  Leave to appeal

1.The defendant applies for leave to appeal to the Court of Final Appeal against our Judgment of 15 December 2021 with our Reasons for Judgment delivered on 20 January 2022. We will now deal with the application on paper.

II.  CACV 625/2020

1)  The question

2.The defendant raises one question which is said to be of great general importance or issues which otherwise ought to be submitted to the Court of Final Appeal for decision :

‘Since (as this Court held in Kayden Ltd v SFC (2010) 13 HKCFAR 696, following Mercedes Benz AG v Leiduck [1996] 1 AC 284) the jurisdiction of the Court of First Instance to permit service of originating process upon a foreign defendant is statutory (with no inherent jurisdiction involved), did the courts below have jurisdiction to permit the plaintiffs to circumvent the RHC Order 11 regime, by making an order under RHC Order 65, rule 4 dispensing with service on the foreign defendant and ordering substituted service upon Hong Kong solicitors representing him in other Hong Kong proceedings, thereby overruling the Court of Appeal’s long‑standing earlier decisions in Tillemont Shipping Corp SA v Taitexma Enterprise Corp [1993] 2 HKC 129 and Bank of China (Hong Kong) Ltd v Regal Link Investment Ltd [2009] 3 HKLRD 203 that such a course is not ‘permissible’ ?’

2)   Our view

3.This ground is dealt with at [32]‑[38] and [83]‑[86] of our Reasons for Judgment. The issue here is case‑specific by reason of the defendant’s submission to jurisdiction. The question is not reasonably arguable.

III.  CACV 190/2021

1)  Four questions

4.The defendant advanced the following four questions which are said to be of great general or public importance or issues which otherwise ought to be submitted to the Court of Final Appeal for decision.

‘1) Were the Courts below entitled to disregard the Court’s decision in Kennedy v Cheng Kelly (2009) 12 HKCFAR 601 at [16] that ‘contempt proceedings should only be brought as a last resort when no alternative powers of the court could be invoked’ by permitting the plaintiffs to bring contempt proceedings after they had initiated parallel account-taking proceedings which were proceeding to trial at the time that the contempt proceedings were tried? (‘the Last Resort ground’)

2) Within Hong Kong’s law of civil contempt, does the common law rule against duplicity/multiplicity within charges of contempt preclude our Courts from dismissing trial objections to contempt charges containing multiple potential acts (or classes of acts) of contempt and/or of convicting defendants upon charges of contempt not incorporated within the Originating Summons making the charge(s) of contempt?  (‘the Multiplicity ground’)

3) Does Hong Kong’s law of civil contempt recognize (as satisfying the core quasi-criminal elements of actus reus and mens rea) an offence of civil contempt comprising the ‘reading down [of] the scope of [a Court] Order’? (‘the Reading Down ground’)

4) Within Hong Kong’s law of civil contempt, can a defendant be committed to prison upon a charge that ‘after service of the Order on the Defendant [he] disobeyed or breached the Order’ when the Order had never been served upon him? (‘the Failed Service ground’)’

2)  Our view

(1)  The Last Resort ground

5.This ground is dealt with at [57]‑[59] of our Reasons for Judgment. The context in which we addressed this issue is case‑specific and in our view this ground is not reasonably arguable.

(2)  The Multiplicity ground

6.This ground is dealt with at [53]‑[56] of our Reasons for Judgment. Again, the issue here is case‑specific and this ground is not reasonably arguable.

(3)  The Reading Down ground

7.This ground is dealt with at [62]‑[68] of our Reasons for Judgment. Again, the issue here is case‑specific and this ground is not reasonably arguable.

(4)  The Failed Service ground

8.This ground is dealt with at [60]‑[61] of our Reasons for Judgment. Again, the issue here is case‑specific and this ground is not reasonably arguable.

IV.  Conclusion

9.Accordingly, the application is dismissed with costs to the plaintiffs. We will summarily assess the plaintiffs’ costs of the application at $230,000 which includes $192,000 for counsel fee.

Mr Barrie Barlow SC and Mr Chan Pat Lun, instructed by MinterEllison LLP, for the Defendant

Mr Jason Pow SC and Mr Alexander Tang, instructed by Fangda Partners, for the 1^st & 2^nd Plaintiffs