Chen Hongqing v. Asia Cement Corporation

CAMP 440/2021

[2022] HKCA 1086

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 440 OF 2021

(ON APPEAL FROM HCA NO.1304 OF 2017)

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BETWEEN

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Before:  Hon Chu JA and G Lam JA

Date of Judgment:  22 July 2022

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

Introduction

1.This is the renewed application of the plaintiff (“Chen HQ”)  for leave to appeal against the decision of K Yeung J (“the Judge”)  given on 16 March 2021 in HCA 1304/2017, which was heard together with HCMP 962/2017[1]. By the decision ([2021] HKCFI 648, “the Decision”), the Judge:

(1)  dismissed Chen HQ’s Originating Summons in HCMP 962/2017 (“962 Proceedings”)  and released the defendants[2] (“962 Ds”)  and the intervenor (“ACC”)  in the 962 Proceedings from their undertakings given on 17 May 2018 (see [6(10)] below).

(2)  dismissed Chen HQ’s applications in HCA 1304/2017 for:

(a)  amendment of the statement of claim to join the 962 Ds as defendants (“the Joinder Application”); and

(b)   injunctions to restrain (i)  ACC from causing any transfer or registration of 104,908 shares (10.49%, “the Subject Shares”)  in China Shanshui Investment Company Limited (“CSI”), and (ii)  the 962 Ds from transferring, voting upon or otherwise dealing with the Subject Shares (“the Injunction Application”).

(3)  granted ACC’s summons in HCA 1304/2017 for security for costs against Chen HQ.

2.The present application is only directed at the Judge’s dismissal of the Joinder Application and the Injunction Application.

3.Having considered the papers filed in this application and the written statements and submissions, we consider it is appropriate to determine the application on paper without an oral hearing pursuant to Order 59 rule 2A(5)(a)  of the Rules of the High Court (“RHC”), Cap.4A.

Background

4.HCA 1304/2017 is part of the wider dispute relating to the control of China Shanshui Cement Group Limited (“CSCG”), a listed company in Hong Kong, in which CSI, a Hong Kong private company, holds a substantial shareholding.

5.The background of those proceedings is contained in several judgments, including the Judgment dated 31 January 2018 given by G Lam J (as G Lam JA then was)  in HCA 1661, 1766 and 2191 of 2014 and HCA 623, 939 and 1564 of 2015 (Consolidated)  (“Trust Actions”, [2018] HKCFI 195)  as well as the Decision of M Chan J dated 27 June 2017 (“M Chan J’s Decision”)  and the Reasons for Decision of G Lam J dated 31 May 2018 (“Lam J’s 31/5/2018 Decision”), both given in the 962 Proceedings.  

6.For the present purpose, it is sufficient to note the following:

(1)  It is Chen HQ’s case that on 17 August 2015, he entered into loan agreements (“Loan Agreements”)  with 11 borrowers (“11 Representatives”)  to enable them to purchase from the employee shareholders their interests in CSI, which was the subject matter of the Trust Actions.  Each of the 11 Representatives also executed a share pledge agreement in favour of Chen HQ in relation to the share interests they were to acquire.

(2)  On the same day, Chen HQ entered into a Share Pledge and Guarantee Agreement (“SPGA”)  with the 962 Ds charging the Subject Shares in favour of Chen HQ to secure the 11 Representatives’ obligations under the Loan Agreements.

(3)  In early 2017, disputes arose between Chen HQ and the 962 Ds over the voting rights of the Subject Shares.  On 10 February 2017, pursuant to the arbitration clause in the SPGA, Chen HQ commenced CIETAC arbitration in Beijing (“the Arbitration”).

(4)  On 23 March 2017, ACC entered into agreements (“SP Agreements”)  with the 962 Ds to acquire the Subject Shares.

(5)  On 31 March 2017, Chen HQ served a Stop Notice on CSI requiring CSI not to register any transfer of the Subject Shares without notice given to him.

(6)  On 25 April 2017, Chen HQ commenced the 962 Proceedings in aid of the Arbitration. 

(7)  On 5 June 2017, Chen HQ also commenced HCA 1304/2017 against ACC seeking declarations that the SP Agreements are invalid and that ACC has acquired no beneficial interests in the Subject Shares, and for an order setting aside the SP Agreements.

(8)  By M Chan J’s Decision, interim receivers were appointed over the Subject Shares, and an injunction was granted restraining the 962 Ds from transferring or dealing with the Subject Shares and exercising the voting rights. 

(9)  On 16 August 2017, 10 of the 11 Representatives deposited RMB 828.1 million with a Mainland notary as repayment to Chen HQ of the principal and interest under the Loan Agreements.

(10)  By the order of G Lam J made on 17 May 2018, the interim receivers appointed by M Chan J were discharged upon undertakings given by the 962 Ds and ACC not to cause the transfer of the Subject Shares and not to vote upon the Subject Shares.

(11)  On 12 June 2018, the final award in the Arbitration was issued (“the SPGA Award”).  In brief, the tribunal held that the SPGA was binding and there were breaches by the 962 Ds.  The tribunal, however, considered it did not have jurisdiction to determine or affirm the performance of the Loan Agreements and could not decide whether the SPGA had been discharged[3].

7.It is Chen HQ’s case that the sale of the Subject Shares to ACC by the 962 Ds without his consent constitutes a breach of the SPGA.  In HCA 1304/2017, he sues ACC for procuring the 962 Ds’ breach of the SPGA, and avers that in the event ACC has acquired any interests in the Subject Shares, his security interests as equitable mortgagee and/or chargee in the Subject Shares take priority and are binding on ACC.  By the Joinder and Injunction Applications, Chen HQ seeks to join the 962 Ds, and to restrain them from transferring, voting upon or dealing with the Subject Shares and ACC from causing any transfer or registration of the Subject Shares.  The applications are opposed.

The Judge’s decision

8.The Judge considered the merits of Chen HQ’s claim (or proposed claim in the case of the 962 Ds)  was pivotal to both the Joinder and Injunction Applications[4].  In the case of the Joinder Application, it would be futile to give leave to join the 962 Ds if the proposed claim against them was bound to fail or was not viable: Goldbay Fortis Ltd v Rich Resources Development Ltd [2018] HKCFI 2684 at [15], and Pang Kwok Lam v Schneider Electric Asia Pacific (unreported)  HCPI 90/2010, 5 January 2011, at [73] and [82][5]; and as for the Injunction Application, a serious question to be tried had to be established under the American Cyanamid principle[6].

9.The Judge found that although the terms of the Loan Agreements suggest they were straightforward loan agreements and the 11 Representatives had tendered repayment of the loans in August 2017, Chen HQ had at different stages and in different proceedings put forward different cases with respect to his relationship with the 11 Representatives over the purchase of the employee shareholders’ interests and shares in CSI and under the Loan Agreements.  The different cases were contradictory and irreconcilable. 

10.Thus,

(1)  in the 962 Proceedings, Chen HQ’s core case was that he provided funding to the 11 Representatives by way of loans and they acquired from the employee shareholders the shares in CSI as principals; and they would sell the shares to him if the employee shareholders succeeded in the Trust Actions (“Loan/Conditional Purchase Case”);

(2)  when applying to be joined in the Trust Actions, his case was that, based on what he termed the Share Acquisition and Loan Agreement (“SALA”), the 11 Representatives acquired the interests in the CSI shares on his behalf and as his “nominees”, and he had become the beneficial owner of the CSI shares from around March 2017 (“Purchasing Agent Case”); and

(3)  in HCA 1304/2017, the proposed Statement of Claim asserted (at [6.5])  that, there was a common understanding among him, the 11 Representatives and the 962 Ds (“Common Understanding”)  to the effect that in the event the Trust Actions were successfully determined in favour of the employee shareholders, Chen HQ would have an option to choose between receiving repayment of the loans in cash or by transfer to him of all the shares in CSI acquired by the 11 Representatives.  Accordingly, he now has an option to choose between repayment of the loans made to the 11 Representatives by cash and by transferring to him all the CSI shares acquired by the 11 Representatives (“Option Case”).     

11.The Judge pointed out that both the Loan/Conditional Purchase Case and the Purchasing Agent Case were given by way of affirmations.  He found that both Lam J’s 31/5/2018 Decision and the SPGA Award were critical of the Purchasing Agent Case.  As to the Option Case, he found it to be incompatible with the terms of the Loan Agreements, which did not support a free-standing option, and that it was highly incredible that the parties would be content to rely on the overarching unwritten common understanding when the shares in question are worth multi-millions.    

12.The Judge held (at [40] of the Decision)  that the various contradictory and inherently incredible cases run by Chen HQ impacted directly on his case against the 962 Ds and ACC in that: (i)  Chen HQ’s case against the 962 Ds is based on clause 5 of the SPGA, which provided that pending the 11 Representatives’ discharge of their obligations under the Loan Agreements, the 962 Ds were not permitted to transfer the Subject Shares without his prior consent; (ii)  the different cases run by Chen HQ went directly to the core issue of what were the 11 Representatives’ obligations under the Loan Agreements; and (iii)  if the terms of the Loan Agreements meant what they said such that the 11 Representatives’ obligations were to repay the loans, then as they had tendered repayment, Chen HQ would have no claim against the 962 Ds and no case for injunctive reliefs. 

13.The Judge therefore concluded that it was plain and obvious that the proposed claim against the 962 Ds was not viable, and dismissed the Joinder Application. 

14.The Judge further held that Chen HQ failed to establish a serious question to be tried as to whether he was entitled to a permanent injunction at trial.  As such, he did not have to decide on the question of balance of convenience.  Out of deference, however, the Judge held that, if necessary, he would have found the balance of convenience was in favour of granting the injunction against the 962 Ds but not so in the case of ACC. 

15.The Judge further accepted there was great force in the submission of ACC and the 962 Ds that, on the evidence, there was concern whether Chen HQ was fronting for some other entity, why that was necessary, and as a result whether he came to court with clean hands.  In conclusion, the Judge also dismissed the Injunction Application.

The Judge’s refusal of leave to appeal

16.The Judge dealt with Chen HQ’s application for leave to appeal on paper, and by his decision handed down on 23 September 2021 ([2021] HKCFI 2861, “the Leave Decision”)  dismissed the application.

17.In respect of the Joinder Application, the Judge had regard to the authorities cited in [31] and [32] of the Leave Decision, and held that while there was no requirement for an applicant for joinder to show merits in his case, it was nevertheless open to the proposed defendant to show that it was plain and obvious that the applicant has no properly arguable case against him.  The Judge reiterated that in the light of the contradictory and inherently incredible cases that Chen HQ had run, it was plain and obvious that his proposed claim against the 962 Ds was not viable. Further, the contradictory and incredible cases also adversely impacted on his claim against ACC.  

18.As to the Injunction Application, the Judge noted that Chen HQ did not challenge the finding that he had put forward clearly contradictory cases, which were inherently highly incredible and contrary to written documents and his own affirmations.  The Judge considered Chen HQ’s reliance on M Chan J’s Decision and Lam J’s 31/5/2018 Decision was misplaced as the issues in those proceedings were different.  In the Injunction Application, a main reason for holding Chen HQ failed to establish a serious issue to be tried was the contradictory cases he had run before different Courts in different proceedings.  The Judge further held that, while the governing law of the SPGA was Mainland law, what was important was Chen HQ’s case on the facts and the nature of the contractual arrangement he had with the 11 Representatives, which had been found to be inherently contradictory and incredible.  

Chen HQ’s proposed grounds of appeal

19.By summons filed on 7 October 2021, Chen HQ made the present renewed application for leave to appeal to this Court.

20.The draft grounds of appeal broadly fall into two grounds as follows:

(1)  On the Joinder Application, the Judge should have granted leave to join the 962 Ds under Order 15 Rule 6(2)(b), RHC as they are necessary and proper parties in the action and there exist issues to be tried between Chen HQ and the 962 Ds, such as whether the SPGA has been validly discharged, which hinges upon the proper construction of the Loan Agreements[7]. It is also said that the Judge has wrongly shifted the burden to Chen HQ to show merits, and further erred in holding, on the affidavit evidence alone, that Chen HQ’s case was bound to fail, given that the case is fact-sensitive[8].

(2)  On the Injunction Application, the Judge erred in holding there was no serious issue to be tried in that, in addition to the issues to be tried between Chen HQ and the 962 Ds, the factual background of the action was complicated involving conflicting expert evidence on Mainland law that has yet to be resolved[9]. This is reflected in some of the judicial statements in the M Chan J’s Decision and the Lam J’s 31/5/2018 Decision[10]. Further, the injunctions should have been granted because damages would not be an adequate remedy considering that the Subject Shares are shares in a private company[11].

ACC and the 962 Ds’ arguments in opposition

21.On the Joinder Application, the 962 Ds pointed out that Chen HQ has not challenged the proposition that there is no point to grant a joinder if the proposed defendant can show that it is plain and obvious that the applicant has no arguable case against him: Advanced Connection Ltd v Able Technology (Hong Kong)  Ltd & Others [2018] HKCFI 2465 at [16] to [22], and approved by the Court of Appeal in [2019] HKCA 1092.  It is submitted that the Judge correctly concluded that the 962 Ds had established that the proposed claim was bound to fail, and the Judge did not shift the burden to Chen HQ to show merits in his claim.

22.On the Injunction Application, ACC and the 962 Ds submitted that it must be shown that the Judge’s exercise of discretion was plainly wrong, and not merely that the appellate court would have preferred a different solution: Green Laconic Ltd v Fan Chin Wa [2021] HKCFI 1884 at [6]; and Natural Dairy (NZ)  Holdings Ltd v Chen Keen [2021] HKCFI 804 at [9].  It was pointed out that Chen HQ has not disputed the Judge’s finding that he has put forward contradictory cases and an incredible case in HCA 1304/2017.  As such, they argued, it was open to the Judge to hold that there was no serious issue to be tried and that the balance of convenience was against Chen HQ for the factors identified in [43] of the Decision.

Our reasons for decision on the application

(1)  Applicable legal principles

23.Section 14AA(4)  of the High Court Ordinance, Cap.4 provides that leave to appeal from an interlocutory order shall not be granted unless the Court is satisfied that the appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard.  

24.For the reasons set out below, we are of the view that the intended appeal against the refusal of the Joinder Application and the Injunction Application does not enjoy any reasonable prospect of success.

(2)  The Joinder Application

25.The summons[12] stated that the Joinder Application was made pursuant to Order 20 Rule 5, RHC.  The proposed amendments are in fact for the purpose of the joinder of the 962 Ds[13].  As Mr Law SC[14] for Chen HQ correctly identified, both in the application for leave to appeal before the Judge and in the present renewed application, the Joinder Application should have been made and falls to be considered under Order 15 rule 6(2)(b), RHC, which provides as follows:

“Subject to the provision of this rule, at any stage of the proceedings in any cause or matter the Court may on such terms as it thinks just and either of its own motion or on application –

(a)  …

(b)  order any of the following persons to be added as a party, namely –

(i)  any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, or

(ii)  any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter.”

26.The starting point is that prima facie a plaintiff is entitled to choose the person against whom it wishes to proceed.  In Ng Chiu Wing v Yip Hoi Ching & Another (unreported)  CACV 362/2008, 29 June 2009 cited in Green Laconic Ltd v Fan Chin Wa, supra, at [46], A Cheung J (as the Chief Justice then was)  held at [15]:

“… prima facie, a plaintiff is entitled to choose the person against whom to proceed … At the joinder stage, unless the court takes the view that the intended claim against the person sought to be joined is bound to fail or unless there are other special circumstances, the court should normally allow the plaintiff to choose his defendant.”

27.The test to be applied in an Order 15 rule 6(2)(b)  application is whether there is a bona fide claim and a proper question to be tried between the plaintiff and the intended defendant that is necessary or just and convenient for resolution between them as well as between the plaintiff and the defendant in the proceedings: Advanced Connection Ltd v Abel Technology (HK)  Ltd & Others [2019] HKCA 1092 at [20]. 

28.Generally speaking, at the joinder stage, the court will not engage itself in a scrutiny of the applicant’s case, or an adjudication of disputed facts: Advanced Connection Ltd v Abel Technology (HK)  Ltd & Others, supra, at [20].  Where the application is opposed, the burden is on the defendant to establish that it is plain and obvious that the plaintiff has no case against him.  In Yeung Pui Ying Anna v Day & Chan (unreported)  CACV 67/2010, 20 July 2010, at [11], Ma CJHC (as the former Chief Justice then was), in considering an objection to joinder on the ground of limitation, held that the matter should be approached as though it had been an application to strike out; in other words, the burden was on the opposing party to show that it was plain and obvious that the limitation had expired.     

29.In the present case, the joinder was opposed on the basis that the proposed claim against the 962 Ds was not viable.  It follows that the 962 Ds had to satisfy the Judge that the proposed claim against them was plainly and obviously bound to fail.  In this regard, the Judge did not err in approaching the matter as if it were a striking out. Nor was he wrong in taking the view that there was no point in granting joinder if the case against the 962 Ds was bound to fail or not viable at all.  In fact, we do not understand Chen HQ to be challenging this proposition.  His submission is only that the burden is on the 962 Ds to establish that it is plain and obvious that he has no case against them, that the disputes are fact-sensitive with the parties’ relationship yet to be determined on evidence, and the Judge erred in holding on affidavits alone that his case is bound to fail[15].

30.Chen HQ’s proposed claim is that the 962 Ds acted in breach of the SPGA in entering into the SP Agreements to sell the Subject Shares to ACC and that he has a prior right to the ownership of the Subject Shares by reason of the Common Understanding, which gave him the option to choose between accepting repayment from the 11 Representatives by cash and acquiring the Subject Shares (i.e., the Option Case).  In opposing the joinder, the 962 Ds argued that the proposed claim was factually unarguable and bound to fail in that the Option Case was plainly contradictory to the case Chen HQ previously stated on oath in other proceedings, and was inherently incredible.  

31.It is clear from the Decision that the Judge accepted the arguments of the 962 Ds and was satisfied that it was plain and obvious that the proposed claim was bound to fail.  Principally, the Option Case was found to be inherently highly incredible and contrary to the documentary evidence.  It was also factually diametrically different from the Loan/Conditional Purchase Case and the Purchasing Agent Case previously advanced by Chen HQ on oath.  The Judge considered that the various prevaricating and contradictory case run by Chen HQ went to the issue of the 11 Representatives’ obligations under the Loan Agreements and, in turn, impacted on the obligations of the 962 Ds under the SPGA and had a direct bearing on the viability of Chen HQ’s proposed claim against the 962 Ds.   

32.Reading the Judge’s reasoning in the Decision and the Leave Decision in its context, we do not agree that the Judge had reversed the burden of proof or had placed the burden on Chen HQ to prove the merits of the proposed claim. 

33.We also do not accept that the Judge’s conclusion that Chen HQ’s case was bound to fail was premised on affidavit evidence alone.  In the first place, we note that no challenge is made in the present application to the holding that the Option Case is diametrically different from the Loan/Conditional Purchase Case and the Purchasing Agent Case, which were previously deposed to by Chen HQ on oath in other proceedings.  In the Decision as well as the Leave Decision[16], the Judge had explained why the Option Case, based on the pleaded common understanding, was inherently implausible, and how the prevaricating and irreconcilable case run by Chen HQ adversely affected the viability of his proposed claim against the 962 Ds.  Contrary to Mr Law’s submission, the Judge had not embarked upon an investigation of credibility on the affidavits and on that basis held that Chen HQ’s case and proposed claim against the 962 Ds were bound to fail.

34.The fact that the disputes are fact-sensitive and the precise nature of the parties’ relationship under the Loan Agreements and the SPGA have yet to be decided is nothing to the point.  As noted above, the Judge approached the issue of the viability of the proposed claim against the 962 Ds by assessing the inherent reliability of the Option case.  He did not have to engage with the factual disputes or the determination of the precise relationship between the parties under the Loan Agreements and the SPGA.

35.Similarly, the existence of conflicting expert evidence on Mainland law relating to the interpretation of the Loan Agreements does not preclude the Judge from reaching the conclusion that the joinder should not be allowed since the proposed claim is bound to fail.

36.For the above reasons, we are of the view that Chen HQ has failed to demonstrate that that the Judge erred in law or was plainly wrong in refusing the Joinder Application.   

(2)  Injunction Application

37.It follows from our conclusion on the merits of the intended appeal against the refusal of the Joinder Application that the intended appeal against the refusal of the Injunction Application against the 962 Ds is not reasonably arguable.  

38.As for the Injunction Application against ACC, the Judge refused it primarily for the reason that there was no serious issue to be tried.  He had explained how the contradictory and inherently incredible cases put forward by Chen HQ adversely impacted his case against the 962 Ds and ACC, and that they demonstrated there was no basis for granting injunctive relief against ACC (see [40] of the Decision and [12] above).  

39.To succeed in his intended appeal against the Judge’s finding refusal, Chen HQ has to show that the Judge was wrong in holding that there was no serious issue to be tried, and not merely showing there were other issues in dispute to be tried[17].

40.As submitted by ACC[18], Chen HQ does not appear to dispute the Judge’s findings on his contradictory and incredible case, in particular the Option Case based on the Common Understanding.  This is important because it is also the Judge’s finding that the various contradictory case put forward by Chen HQ gave rise to the critical question of what were the obligations of the 11 Representatives under the Loan Agreements that were secured by the Subject Shares under the SPGA.  It was held that if the terms of the Loan Agreements mean that the 11 Representatives’ obligations  were to repay the Loans, which they did, then Chen HQ would have no case for any injunctive relief against ACC[19]. The submissions on behalf of Chen HQ have not shown in what way the Judge erred in his reasoning and findings.

41.The thrust of Chen HQ’s submissions[20] is that he has a seriously arguable claim and that ACC had accepted that the case has a complicated factual background involving complicated foreign law and conflict of law issues.  It is argued that independent of his credibility and even if his evidence is rejected in its entirety, there are still issues to be tried under the Mainland law as to the interpretation of the provisions in the Loan Agreement and whether the notary deposit made by the 11 Representatives was a valid discharge of the Loan Agreement.  However, as the Leave Decision held (at [47]), irrespective of the disputes over the Mainland law and their outcome, what was critically important was the nature of Chen HQ’s contractual arrangement with the 11 Representatives, which formed the core and factual basis of his claim, and which was found to be inherently contradictory and incredible.  

42.We also agree with the Judge[21] that the reliance on the observations made in M Chan J’s Decision and Lam J’s 31/5/2018 Decision was misplaced.  The two decisions were not concerned with whether the interpretation of the Loan Agreements and the SPGA currently put forward by Chen HQ is reasonably arguable.  The issue for M Chan J was whether the SPGA was void and unenforceable due to non-registration with the Mainland authorities and their purpose[22].  As for G Lam J, the issue was whether M Chan J was misled into granting the interim receivership and whether the receivership was in any event unnecessary[23].  There was no need for His Lordship to decide on the precise effect of the arrangement under the Loan Agreements and the relationship between Chen HQ and the 11 Representatives, or to embark on a detailed consideration of the arguments surrounding the interpretation to be put to the Loan Agreements and the effect of the notary deposit.  It should also be noted that at the time Chen HQ had not yet put forward the Option Case.  It is in those contexts that the judges made the statements that some of the disputed matters were governed by Mainland law and they would not wish to arrive at a conclusion.  We do not consider that these statements assist Chen HQ in showing that the Judge was wrong in finding there was no serious issue to be tried for the purpose of the Injunction Application.

43.Given the Judge’s conclusion that Chen HQ had not made out there was any serious issue to be tried, it was not necessary for him to make a determination on where the balance of convenience lay.  However, the Judge had indicated that, had it been necessary, he would have found that the balance of convenience was against the grant of injunctive relief against ACC for the reasons given in [43] of the Decision.  Chen HQ argues that damages are not an adequate remedy because the Subject Shares are shares in a private company and a substantial number of shares are involved.  While this may be a relevant factor to be considered, we are not persuaded that the Judge erred in his view that the balance of convenience was against the grant of injunctive relief for the reasons he gave.

44.For the above reasons, we are of the view that Chen HQ has failed to show that the Judge was plainly wrong in refusing the Injunction Application.

(3)  Conclusion

45.In conclusion, the intended appeal does not enjoy reasonable prospect of success.  Nor is there any matter which in the interests of justice requires the intended appeal to be heard.  Accordingly, we refuse the application for leave to appeal and dismiss the summons.

46.As the application is totally without merit, we further make an order under Order 59 rule 2A(8)  of the RHC that no party may pursuant to Order 59 rule 2A(7)  request our determination to be reconsidered at an oral hearing inter partes.

(4)  Costs

47.Applying the normal rule of costs follow the event, we order Chen HQ to pay ACC and the 962 Ds the costs of this application to be summarily assessed.  

48.We have considered the statement of costs of ACC and the 962 Ds.  On a party-and-party basis and considering that this is a renewed application involving the same set of papers and very similar arguments in the proceedings before the Judge, we are of the view that the time and quantum of items D2 (perusal of documents)  and E1 (junior counsel’s fee)  in the 962 Ds’ statement of costs, and the time of items C3 (attendance on counsel)  and D1 (preparation of documents)  in ACC’s statement of costs should be revised downwards.  Taking a broad-brush approach, we summarily assess each of their costs at $150,000.  

Mr Law Man-Chung SC, instructed by Gallant, for the Plaintiff

Mr Abraham Chan SC and Mr Joshua Chan, instructed by Dechert, for the Defendant

Mr Simon Westbrook SC and Ms Sharon Yuen, instructed by Stephenson Harwood, for the Intended 2^nd to 5^th Defendants