Zl v. Wy and Others

HCMP 948/2020

[2023] HKCFI 2447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 948 OF 2020

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D E C I S I O N

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A. INTRODUCTION

1.On 15 August 2023, I handed down a decision (“the August Decision”)[1], in which I dismissed the Continuation Summons and discharged the 2023 HK Injunction.  With the consent of the parties, a redacted version of the August Decision has been published.  The abbreviations used in that redacted version are adopted in this decision.

2.The Wife intends to lodge an appeal against the dismissal of the 2023 HK Injunction and has taken out the following summonses (“the Wife’s Summonses):

(1)  a summons dated 29 August 2023 for leave to appeal (with a draft notice of appeal (“the Notice of Appeal”) annexed thereto) (“the 1^st Summons”);

(2)  a summons dated 29 August 2023 for stay of execution of my order made in the August Decision pending the determination of the appeal (“the 2^nd Summons”); and

(3)  a summons dated 30 August 2023 for the following (“the 3^rd Summons”):

(a)  a direction as to whether leave to appeal against the August Decision is or is not required;

(b)  leave be granted to the Wife to refer to and use the 1^st Summons (including the Notice of Appeal), the 2^nd Summons, the 3^rd Summons, and the parties’ submissions and any documents relied thereupon in support of the Wife’s summonses and the decision to be made by this court on these summonses;

(c)  a stay of execution of the August Decision and the Order made therein pending the determination of the 2^nd Summons; and

(d)  directions concerning filing of evidence in relation to the 2^nd Summons.

3.After consulting the parties, I directed that the Wife’s Summonses be determined on paper without an oral hearing.  I have also directed that the interim stay granted in [84] of the August Decision and the 2023 HK Injunction be continued until the disposal of the Wife’s Summonses or a further order made by this Court.

4.The Wife has retained a new legal team (both solicitors and counsel) to represent her to handle the 3 summonses.  The Wife is now represented by Mr William Wong SC (leading Mr Alex Yeung) in these applications.  The Brother is represented by Mr Lai Chun Ho, and the Company is represented by Mr Frederick HF Chan.

5.The merits of the Wife’s intended appeal will be discussed in this decision.  For ease of reference, a copy of the Notice of Appeal is annexed to this decision.

B.   LEAVE TO APPEAL IS REQUIRED

6.High Court Ordinance (“HCO”), s.14AA provides:

“(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by the Court of First Instance or the Court of Appeal.” (Emphasis added)

7.Rules of the High Court, Order 59 rule 21 provides:

“(1) Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following —

(a) a judgment or order determining in a summary way the substantive rights of a party to an action;

……

(3) A direction as to whether a judgment or order is one that is referred to in paragraph (1)(a) may be sought from the judge who made or will make the judgment or order.”

8.Pursuant to Order 59 rule 21(3), the Wife is now seeking a direction from me as to whether leave to appeal is required for the purpose of lodging the intended appeal.

9.Mr Wong for the Wife submits that leave to appeal is not required.  In determining whether a decision is final or interlocutory, the court would examine the nature of the application to see whether the order made thereupon would substantively determine the rights of the parties. A broad commonsense approach should be adopted.[2] Mr Wong argues that in this case, once the 2023 HK Injunction has been discharged, the Wife’s right to enforce the Australian Ex Parte Injunction via HCO s.21M would be substantively determined. There are no other proceedings by which the Hong Kong enforcement of the Australian Ex Parte Injunction could be revived.

10.With respect, I am unable to accept Mr Wong’s submissions.  In my view, it is plain and obvious that leave to appeal is required for the purpose of lodging the intended appeal.

11.First, an application for an injunction made under HCO s.21M is an application for an interim relief.  An application under s.21M is not an application for a final relief determining the substantive rights of the parties.  By looking at the wording of s.21M, the answer is plain and obvious.  S.21M reads as follows:

“(1) Without prejudice to section 21L(1), the Court of First Instance may by order appoint a receiver or grant other interim relief in relation to proceedings which—

(a) have been or are to be commenced in a place outside Hong Kong; and

(b) are capable of giving rise to a judgment which may be enforced in Hong Kong under any Ordinance or at common law.” (Emphasis added)

12.Second, the industrious research by all counsel shows that the Court of Appeal have repeatedly considered that in respect of a decision made by this Court under s.21M, for the purpose of lodging an appeal from that decision, leave to appeal is required.

(1)  Mr Wong has very fairly drawn my attention to XY LLC v Jess Zhu[3], in which Kwan JA (as her ladyship then was) said at [11] that while the judge at the first instance found that ground 1 of the proposed appeal had no reasonable prospect of success, the judge should grant leave to appeal only in respect of ground 2.  In my view, in saying so, the Court of Appeal has clearly considered that for the purpose of lodging an appeal against a decision made under s.21M, leave to appeal is required.

(2)  Mr Lai for the Brother has referred me to Beyonics Technology Ltd & Another v Goh Chan Peng & Others.[4] In that case, the relevant defendants failed in their application to discharge a Mareva injunction made under s.21M at the first instance.  Their application for leave to appeal was refused by the judge at the first instance.  However, subsequently, the Court of Appeal granted leave to appeal to the defendants.  Obviously, the decision itself shows that the Court of Appeal regarded that leave to appeal is necessary in order to lodge an appeal against a decision made under s.21M.

(3)  Mr Chan for the Company has drawn my attention to Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd[5], in which the judge at the first instance granted leave to appeal to the plaintiff, and the Court of Appeal did not say that such leave was unnecessary.

In view of the aforesaid decisions made by the Court of Appeal, the position is clear.

13.Third, one must not forget that the Australian Ex Parte Injunction, and the 2023 HK Injunction (which is an injunction in aid of the Australian Ex Parte Injunction), are Mareva injunctions.  As rightly submitted by Mr Chan, a Mareva injunction, by its very nature, is an interim relief which does not determine any substantive rights of the parties.

(1)  In Siskina (Cargo Owners) v Distos Cia Naviera SA[6], Lord Diplock said:

“The purpose of this kind of interlocutory injunction against a foreign defendant is to ensure that there will be a fund available within the jurisdiction to meet any judgment obtained by a plaintiff in the High Court against a defendant who does not reside within the jurisdiction and has no place of business there. It is a procedural innovation of very recent origin which has acquired the sobriquet of a Mareva injunction from the name of the case in which its validity was first upheld in a reasoned judgment of the Court of Appeal given on an ex parte application: Mareva Compania Naviera S.A. v. International Bulkcarriers S.A. (The Mareva) [1975] 2 Lloyd’s Rep. 509. A Mareva injunction is interlocutory, not final; it is ancillary to a substantive pecuniary claim for debt or damages; it is designed to prevent the judgment against a foreign defendant for a sum of money being a mere brutum fulmen.”

(2)  In Carl-Zeiss Stiftung v. Rayner & Keeler Ltd (No 3)[7], Buckley J (as he then was) commented on the provisional nature of an interlocutory injunction as not involving the final determination of the substantive rights of the parties:

“Many interlocutory orders, such, for instance, as an interim injunction limited to take effect only until judgment or further order, clearly involve no final decision of any issue between the parties either expressly or, since they depend only upon a prima facie case being made out, by implication.” (Emphasis added)

(3)  The 2023 HK Injunction is supported by the cross-undertaking as to damages offered by the Wife.  The necessity of having an undertaking as to damages from the Wife in support of the injunction clearly shows that the 2023 HK Injunction is an interim order, which has not determined the substantive rights of the parties in these proceedings.

14.For the reasons above, in my judgment, for the purpose of lodging an appeal against the dismissal of the Continuation Summons and the discharge of the 2023 HK Injunction, leave to appeal is required.

C.   LEAVE TO APPEAL REFUSED

15.Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard.^[8]

C1.    No new evidence

16.The August Decision was made on the basis of the evidence placed before the court in the hearing on 9 August 2023.  However, in the bundles for the paper disposal of the Wife’s Summonses, the Wife has included some materials which were not placed before the court in the hearing on 9 August 2023.  The Brother and the Company object to the inclusion of such new evidence for the purpose of the paper disposal of the Wife’s Summonses.  The new evidence being introduced by the Wife is her 1^st to 4^th Affidavits filed in these proceedings.  Those affidavits were not filed in support of the 2023 HK Injunction but were filed in support for the 2021 HK Injunction.[9]

17.In Man Lin Heung v 梁根林and Another[10], the Court of Appeal said:

“Procedurally, application for leave to adduce new evidence could not be entertained until after leave to appeal has been granted and it is a matter for the Court of Appeal in deciding whether the new evidence should be admitted. However, an applicant in an application for leave to appeal can support such application by reference to new evidence if he can demonstrate that it is reasonably arguable that the Court of Appeal would grant leave by reference to the criteria in Ladd v Marshall. Thus, a judge (including a first instance judge) processing the application for leave would have to examine if the new evidence could arguably satisfy these criteria. If these criteria are not satisfied, such evidence should be disregarded for the purpose of the application for leave to appeal.”

18.The Ladd v Marshall criteria have been conveniently set out by the Court of Appeal in Re Alain Kunpa[11]:

“24. It is well established by Ladd v Marshall [1954] 1 WLR 1489 that leave to adduce further evidence on appeal will only be granted (1) if it is shown that the evidence could not have been obtained with reasonable diligence for use at the trial, (2) if the further evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (3) if the evidence is such as is presumably to be believed.”

19.The Wife has put forward the following arguments[12]:

(1)  The 2023 HK Injunction was built upon the previous injunction orders and various affirmations and exhibits previously filed by the Wife.  If the entire 2023 HK Injunction is discharged, it is only fair and appropriate for the court to consider the evidence filed in support of the previous injunctions.

(2)  The Wife’s 1^st to 4^th Affidavits are evidence properly adduced before the court in these proceedings.  It is not appropriate for the Brother and the Company to invite the court to simply neglect these matters.

(3)  It is wrong for the Brother and the Company to suggest that, in deciding whether the discharge of the 2023 HK Injunction should be stayed, a “snap-shot” view of the evidence presented at the ex parte hearing on 13 March 2023 ought to be taken.

(4)  The case management powers of the court should be exercise to “ensure fairness between the parties”[13] and “to secure the just resolution of disputes between the parties”[14].

20.With respect, I am not persuaded by the Wife’s arguments.

(1)  In one case, there would be various interlocutory applications.  As a matter of principle, the evidence filed in one interlocutory application would not be automatically deemed as evidence in another interlocutory application.  If Party A intends to rely upon the evidence filed in a previous interlocutory application as evidence in a subsequent interlocutory application, Party A should make it clear in the subsequent application.  As a matter of fairness, the other side (Party B) is certainly entitled to know what evidence is being relied upon by Party A in the subsequent application.  Party B would need to know the case of Party A in that subsequent application, which Party B would have to meet by evidence and submissions.

(2)  In this case, it is plain and obvious that the Wife’s 1^st to 4^th Affidavits are not evidence filed in support of the 2023 HK Injunction and are not evidence placed before the court in the hearing on 9 August 2023.  No notice had ever been given to the Brother and the Company that the Wife would rely upon these affidavits in support of the Continuation Summons before the August Decision.  The Wife now intends to introduce these affidavits as evidence in her intended appeal against the August Decision.  For the purpose of the intended appeal, these affidavits shall be regarded as new evidence.

(3)  The Wife (or the legal team representing her at that time) elected not to include these affidavits as evidence in support of the 2023 HK Injunction and not to place these affidavits before the court in the hearing on 9 August 2023.  In the circumstances, the first condition in Ladd v Marshall would be an insurmountable hurdle.

21.For the reasons above, for the purpose of determining the Wife’s Summonses, her 1^st to 4^th Affidavits shall be disregarded.

C2. Some cardinal principles

22.Before moving to discuss the merits of the Wife’s intended appeal, it would be useful to set out some cardinal principles first.

23.An appeal from the judgment made by a judge of the Court of First Instance to the Court of Appeal is not a de novo hearing.  In the notice of appeal, the appellant has to identify a justifiable basis upon which the Court of Appeal may interfere in the decision of the judge below.  The appeal is not a retrial or a de novo rehearing of the application which has already been determined by the court below.[15]

24.The principles governing leave to appeal have been summarized by Kwan JA (as her ladyship then was) in Wong Kar Gee Mimi v Severn Villa Ltd:[16]

“29. The principles on granting leave to appeal are well established. Leave can be granted if the court is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable”. As the leave requirement was introduced largely to address satellite litigation on interlocutory issues which almost invariably gives rise to major delay and expense, so for the court to be satisfied that the appeal does have “reasonable prospects of success”, merely showing that the appeal is “arguable” and “not fanciful” would not be sufficient.

30. Even if the threshold test of reasonable prospect of success is satisfied, the court still retains discretion whether to grant leave, although the fact there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion. The court may refuse leave to appeal in the interests of procedural economy and proportionality.” (Emphasis added)

25.In order to succeed in challenging a case management decision made by the court below, the appellant has to overcome a very high hurdle.  As said by Kwan JA (as her ladyship then was) in Wong Kar Gee Mimi v Severn Villa Ltd:

“31. It must also be borne in mind that the orders made by the Judge in the intended appeal are case management decisions in the exercise of the discretion of the Trial Judge.  Case management decisions are only subject to appeal in rare circumstances. The appellant faces a “very high hurdle” and must show that the Judge “has gone clearly wrong and made orders which will clearly involve an injustice or an inability for the trial court to carry out its task”, or if the Judge “erred in principle or the order was irrational having regard to the issues that had to be resolved”. It need hardly be emphasised that generally, an appellate court will not interfere with a judge’s exercise of discretion unless the Judge has misunderstood the law or the evidence or the exercise of his discretion was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.”

26.It is trite that an appellant cannot succeed in a civil appeal by pointing to any fault or blameworthiness on the part of the legal team representing him at the trial.  His remedy lays in proceedings in negligence against the legal representatives and not in an order for a retrial.  The court system would grind to a halt if an unsuccessful litigant could obtain an order for a retrial by relying upon the negligence of his own legal representatives, not to mention the injustice of depriving the successful party of a judgment in his favour after a full trial.^[17] In my view, these principles also apply to the unsuccessful party in an interlocutory application in a civil case.

C3.  No reasonable prospect of success

27.The Wife’s new legal team has put in a lengthy Notice of Appeal.  Having considered the Notice of Appeal and the parties’ respective written submissions, I am in respectful agreement with Mr Lai for the Brother that the Wife is now trying to re-litigate the merits of the Continuation Summons afresh.  With respect, this is a fundamentally wrong approach.  In my view, the intended appeal is not and cannot be a de novo hearing of the Continuation Summons.  Whether there is a justifiable basis for the Court of Appeal to interfere with the August Decision should be assessed on the basis of the evidence before the court in the hearing on 9 August 2023 and the submissions made to the court in that hearing.

28.In the Notice of Appeal, there are 17 grounds of appeal under 5 different categories. I would discuss the grounds under each category in turn in the paragraphs below.

C 3.1 – Category A, Ground 1

29.The Wife says that I erred in law and/or was plainly wrong in refusing to adjourn the Continuation Summons and the Company’s Summons pending the substantive determination of the BCAA by the Australian Court.[18]  The merits of the Australian Ex Parte Injunction ought to be primarily considered in Australia without pre-emption by the Hong Kong Court.  I should accede to the Wife’s application for an adjournment, and grant a holding injunction pending the outcome of BCAA.

30.The decision not to adjourn the hearing of the Continuation Summons and the Company’s Summons to wait for the outcome of the BCAA is a discretionary decision and is also a case management decision.  In order to successfully challenge this decision, the Wife has to overcome a very high hurdle.  Reasons for this decision have been set out in [38] of the August Decision.  One can see that in those reasons, I have taken judicial comity into account.

31.Having considered the Wife’s submissions, I am not satisfied that the Wife has a reasonable prospect of success in arguing that I erred in law in making the decision not to adjourn the hearing, or my decision was plainly wrong in the way that it was outside the generous ambit within which a reasonable disagreement is possible.

32.There is no merit in the ground under Category A.

C 3.2 – Category B, Grounds 2 to 6

33.As to Ground 2, as said by Lord Philips NPJ in Compania Sud Americana de Vapores SA v Hin-Pro International Logistics Ltd[19] at [48] of the judgment, the first question in the first stage is whether the nature of the foreign proceedings is such that the Hong Kong court will not enforce any judgment to which they give rise, and public policy is a factor to be considered in this question.  In my view, the Court of Final Appeal has not said that Hong Kong law cannot be considered for the purpose of this question.

34.As to Ground 3, as submitted by Mr Chan for the Company, the decision cited by the Wife in that ground, ie 蘇州太合滙投資管理有限公司v 霍爾果斯市摩伽互聯娛樂有限公司[20], is a decision concerning Chabra injunction.  Suffice to say that in the hearing on 9 August 2023, the Wife did not seek any Chabra injunction.  The basis of the Continuation Summons is s.21M of the HCO, no more and no less.  In the circumstances, I am of the view that the Wife cannot rely upon Ground 3 in support of her intended appeal.

35.There is also no merit in Grounds 4 and 5.

36.In the Wife’s 5^th Affidavit[21], the Wife said:

“16. …… WHD was set up in 2005 and was a profitable business throughout, with substantial trading. ……

…………

21. I accept that WHD is indeed engaged in active business operations, and has factory operations in Vietnam and China, distributing [the goods] to Australia, US and European markets. ……” (Emphasis added)

37.The Wife is now trying to argue that “WHD” is merely a term referring to the Husband’s business under [the full name of WHD] banner, and not the Company. As submitted by Mr Lai, this argument advanced by the Wife must be rejected. 

(1)  At [1] of the Wife’s 5^th Affidavit, it has been clearly defined that “WHD” means the Company.

(2)  At [24] of the Wife’s 5^th Affidavit, the Wife mentioned some business figures of “WHD” revealed by the subpoenas obtained in the Australian Court. As shown in [15] of the Wife’s 5^th Affidavit, these subpoenas were issued against the retailers of the Company.

38.Based upon the evidence before the court in the hearing on 9 August 2023, including the Wife’s 5^th Affidavit, there is no reasonable prospect of success in challenging the finding made in [51(2)] of the August Decision.

39.I also do not see any basis upon which the Wife would have a reasonable prospect of success in challenging my ruling in [51(1)] of the August Decision.  I note that Mr Wong has referred to [22] of the P/C in his submissions.  However, in [22] of the P/C, the Wife is merely saying that, from time to time, the Husband has directed monies owed to him personally be deposited into the Company’s bank accounts.  However, this does not mean that the Company is a nominee of the Husband, and all the Company’s assets are beneficially owed by the Husband. Importantly, as mentioned in [21] of the August Decision, after setting out some material facts in the P/C (that would include [22] of the P/C), the Wife set out her conclusion in [33] to [35] of the P/C, ie the shares in the Company, not the assets of the Company, are beneficially owned by the Husband.

40.Mr Wong has also referred to [73] of Schonell J’s Reasons for Decision dated 10 August 2022.  As submitted by Mr Lai, there is nothing in that paragraph saying that the Wife’s case is that the Company is a nominee of the Husband.  On the contrary, in [74] of the judgment, the learned judge said:

“74. [The Wife] by way of Points of Claim contends that an express trust exists between [the Husband] and [the Brother], alternatively a resulting or constructive trust and/or in the alternative that [the Brother’s] holding of the shares in [the Company] is a sham. [The Wife] seeks a declaration in her final relief that the shares held by [the Brother] in [the Company] are held on trust for [the Husband].”

41.Mr Wong has also mentioned that before the breakdown of the marriage, the Husband would cause significant sums of money to the Husband’s and the Wife’s bank accounts to pay for their living expenses.  With respect, this cannot be an arguable ground of appeal.  As submitted by Mr Lai, a company can lend money to other people. 

42.While the analysis of the Wife’s pleaded case in the Australian Proceedings as set out in the August Decision is correct, and while the Wife has admitted that the Company is a profitable business with substantial trading and is engaged in active business operations, the grounds put forward in Category B cannot be arguable.

43.There is no merit in the grounds under Category B.

C3.3  Category C – Grounds 7 to 11

44.As to Ground 7, as said in the above, whether there is any merit in the Wife’s intended appeal is to be assessed on the basis of the evidence placed before the court in the hearing on 9 August 2023 and the submissions made to the court in that hearing.  For the sake of discussion, even if there is anything improperly done by the Wife’s previous legal team[22], this factor itself cannot be a ground of appeal.

45.As to Ground 8:

(1)  Since the Wife is the applicant for an order to continue the 2023 HK Injunction, the Wife bears the burden to show, inter alia, a real risk of dissipation, so as to render the final judgment which the Wife may obtain in the Australian Proceedings of no effect.

(2)  If the Wife is saying that she has any real difficulty in levying execution of the 97% of the matrimonial assets which are not in Hong Kong, the burden is on her to adduce evidence to show the same.  The Wife has not adduced any evidence to discharge this burden.

(3)  If the Wife is saying that the Brother would not honour the Brother’s Undertaking, this is a serious allegation, which must be raised clearly and expressly, with full particulars in support thereof.  Such an allegation has never been made.

(4)  Without prejudice to the aforesaid, if the Wife is saying that the Brother (being an Australian resident living in Australia) would not honour the Brother’s Undertaking given to the Australian Court, on what basis the Wife can say that the Brother would observe an injunction made by the Hong Kong Court?  The fact that the Wife is seeking orders from the Australian Court and the Hong Kong Court, shows that from the Wife’s perspective, court orders against the Brother would be efficacious.  An undertaking offered to a court is equivalent to an order made by that court.

46.As to Ground 9, in the hearing on 9 August 2023, I was aware that there were disputes between the parties as to whether the Brother and the Company had fully complied with the disclosure obligations in the Australian Proceedings. However, there can be no doubt that:

(1)  By the time of the hearing on 9 August 2023, the Wife has already known the following:

(a)  The total value of the matrimonial assets is about AUD 897 million.

(b)  The value of the Hong Kong assets would be about 3% of all the matrimonial assets.

(c)  The Wife’s case in the Australian Proceedings is that she should be entitled to 50% (or slightly more than 50%) of the matrimonial assets.

(2)  There is no dispute that 73% of the matrimonial assets are the shares in the Company.

(3)  In the Australian Proceedings, the Australian Court has already taken steps (including accepting the Brother’s Undertaking) to preserve the matrimonial assets (including the shares in the Company).

(4)  Importantly, there is no allegation (let alone evidence) saying that the Brother and/or the Company has dissipated any asset in breach of any injunction made by the Australian Court and/or the Brother’s Undertaking.

In view of all these, I do not consider that by the allegations set out in Ground 9, the Wife can show a real risk of dissipation of assets.

47.As to Ground 10, reading [70] of the Wife’s 5^th Affidavit in context, what the Wife is saying in that paragraph is that the Company can use the money in the Taishin A/C to settle the invoices from the suppliers.  The Wife is not saying that the withdrawals as mentioned in [70] of her 5^th Affidavit are breaches of the Australian Ex Parte Injunction.  On the contrary, the Wife is saying that the withdrawals from the Taishin A/C are regular activities and are within the exception of the Australian Ex Parte Injunction.  In my view, Ground 10 is not supported by [70] of the Wife’s 5^th Affidavit.

48.There is no merit in the grounds under Category C.

C3.4  Category D – Grounds 12 to 14

49.In the hearing on 9 August 2023, the only explanation given to justify the ex parte without notice made by the Wife on 13 March 2023 is the one set out in [64] of the August Decision.  This explanation has been rejected for the reason given in [65] of the August Decision.  There is nothing in the Notice of Appeal or in the Wife’s submissions challenging my ruling made in [65] of the August Decision.

50.As to the point made by Mr Lai and accepted by this court as set out in [66] and [67] of the August Decision, there is nothing in the Wife’s submissions which can be considered as a satisfactory answer to the point.

51.The only point made by Mr Wong is that there are some balances in the Brother’s A/C and in the Company’s A/C.  Since there is a real risk of dissipation of assets, for the purpose of preserving these assets, it is necessary to make an ex parte without notice application for a Mareva injunction in the first place.  With respect, I am unable to accept this submission.  The explanation now given has not been raised in the evidence filed by the Wife in support of the 2023 HK Injunction.  This explanation has also not been raised in the submissions made on the Wife’s behalf in the ex parte hearing on 13 March 2023 and in the hearing on 9 August 2023.  Based upon the evidence before me, I am not satisfied that this was the real reason for the Wife to choose to make the ex parte without notice application at the very beginning.

52.Without prejudice to the aforesaid, even assuming that the point now put forward by Mr Wong can be taken into account, there is still no answer to the point made by Mr Lai and accepted by this court as set out in [66] and [67] of the August Decision.  In respect of the Securities in the Brother’s Securities A/C, there is no reason why the Wife can have a Mareva injunction freezing these assets by an ex parte without notice application.  For the sake of discussion, even if an assumption in the Wife’s favour is made, ie assuming that the Wife may make an ex parte without notice application in respect of the balances in the Brother’s A/C and in the Company’s A/C, that does not mean that the Wife can lump the Securities in the Brother’s Securities A/C and the balances in the bank accounts together and get an injunction freezing all these assets in one single ex parte without notice application.

53.There is no merit in the grounds under Category D.

C3.5  Ground E – Grounds 15 to 17

54.As to Ground 15,

(1)  Regarding Ground 15.1, I am of the view that based upon the evidence before the court in the hearing on 9 August 2023 and the submissions made to the court in that hearing, it is not reasonably arguable that the court has misunderstood the Wife’s case in that hearing.  It is not reasonably arguable that this court erred in any aspect in [78(1)] of the August Decision.

(2)  As to Ground 15.2, that the Company is a trading company is a matter accepted by the Wife.  See [36] above.

(3)  As to Ground 15.3, in respect of [78(2)(c)] of the August Decision, the part that “[i]t is important that the Company should have unrestricted use of those accounts” is an important point in the Company’s case.  Undeniably, this has not been disclosed by the Wife.

(4)  Regarding Ground 15.4, the matter as set out in [78(2)(d)] of the August Decision is the core issue in the Brother’s case and in the Company’s case.  That issue must be disclosed.

(5)  Regarding Ground 15.5, the matters in [78(2)(a) and (e)] of the August Decision are relevant for assessing whether the Company is indeed beneficially owned by the Husband.

(6)  As to Ground 15.6, with respect, I am of the view that this ground is devoid of any merit.

(a)  The point that a Hong Kong judgment is enforceable in Australia under s.6(7) of the Australian Foreign Act 1991 (“AFA 1991”) has never been raised before.  The Brother and the Company have not been given any opportunity to adduce any expert evidence on foreign law in response to the point now raised by the Wife.  This point should not be open to the Wife in the intended appeal.

(b)  Without prejudice to the above, if s.6(7) of AFA 1991 is of any relevance, that is a matter which ought to be mentioned by the Wife in the ex parte hearing on 13 March 2023.

(c)  Recently, in Exclusive Networks Deutschland Gmbh v Wakoon Trading (HK) Ltd and Another[23], Cheung JA said:

“10. …… generally speaking, the provisions for reciprocal enforcement of judgments in different jurisdictions are merely for a foreign judgment to be treated as a local judgment in the jurisdiction where enforcement is sought. It does not mean that the problems enforcing a judgment, particularly in a foreign country, in terms of delay or expenses are in any way lessened. ……”

(d)  Even if a judgment obtained by the Brother and/or the Company in this case can be enforced against the Wife in Australia by the operation of s.6(7) of AFA 1991, the Wife ought to mention this point, together with the difficulties in enforcing a Hong Kong judgment in a foreign country, to the ex parte Judge.  Further, the fact that the Wife has no connection in Hong Kong and has no asset in Hong Kong should also be drawn to the ex parte Judge’s attention.

(e)  In my view, there can be no reasonable prospect of success in an appeal against my ruling in [78(3)(c)] of the August Decision by relying upon the matters set out under Ground 15.6 of the Notice of Appeal.

(7)  As to Ground 15.7, I repeat what I have said under subparagraph (1) above.

55.There is no merit in the grounds under Category E.

C4.  Leave refused

56.An appeal is against the order made by the court, not against the reasons given by the court.[24]

57.I am of the view that none of the grounds set out in the Notice of Appeal has merit.

58.In the August Decision, I have ruled against the Wife on various issues, namely (a) public policy consideration, (b) risk of dissipation, (c) propriety of the ex parte without notice application, and (d) material non-disclosure.  Under material non-disclosure, I have ruled against the Wife on MND A to C, and on MND 1 to 6.  For the sake of discussion, even if the Wife could make any inroad into some of my rulings made against her made in the August Decision, the Wife would still not have a reasonable prospect of success in her intended appeal.  In order to show a reasonable prospect of success, the Wife has to demonstrate an arguable case that I erred in each and every ruling made against her in the August Decision.  In my view, the Wife has not overcome this hurdle.  There is no reasonable prospect of success in the appeal proposed by the Wife.

59.In the Wife’s supplemental written submissions dated 21 September 2023, Mr Wong also tries to seek leave under the “some other reason in the interest of justice” limb by saying that there are undecided questions of law of general and profound importance.  Mr Wong’s core suggestion is that whether specific Hong Kong legal principles can be considered as “public policy” in refusing an application made under s.21M of the HCO is a question which ought to be submitted to the Court of Appeal for decision.  With respect, I am of the view that this case is not the proper occasion for referring this question to the Court of Appeal.  My ruling on the public policy ground is only one of the grounds for refusing the Continuation Summons and discharging the Injunction. If the Wife does not have a reasonable prospect of success in challenging the other rulings made against her in the August Decision, even if I have erred on the public policy ground, that would not change the outcome of the Continuation Summons.

60.For the reasons above, I am of the view that there is no reasonable prospect of success in the appeal proposed by the Wife.  I also refuse to grant leave to the Wife under the “some other reason in the interest of justice” limb.  I refuse to grant leave to appeal to the Wife.

D.  STAY APPLICATION REFUSED

61.The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay.  If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.^[25]

62.Since I have ruled that there is no reasonable prospect in the Wife’s intended appeal and I have refused to grant leave to appeal to the Wife, subject to what I am going to say in the paragraph below, no stay of execution would be granted.

63.I would grant a short-term interim stay to allow the Wife to have some leeway to consider the way forward and to make any necessary application(s) to the Court of Appeal as she deems fit.  The interim stay granted in [84] of the August Decision and the 2023 HK Injunction would be continued for a further 35 days after the handing down of this decision.[26] After the expiration of the 35-day period, the interim stay would expire and the 2023 HK Injunction would be discharged without a further order.

64.Since I have ruled against the Wife in the August Decision and have also dismissed the Wife’s Summonses, no further stay would be granted by me.  Any order for a further interim stay may only be granted by the Court of Appeal.

E.   LEAVE TO USE THE DOCUMENTS IN THESE PROCEEDINGS IN THE AUSTRALIAN PROCEEDINGS

65.There can be no doubt that these proceedings are related to the Australian Proceedings, including the BCAA.  In my view, in the interest of justice, the parties herein should be allowed to refer to the documents used in these proceedings in the Australian Proceedings.  I grant leave to permit the parties to do so.

66.For avoidance of doubt, the permission is not only given to the Wife, but is also given to the other parties in these proceedings, ie the Husband, the Brother and the Company.  Further, the scope of the permission does not only cover the documents set out in the 3^rd Summons, but covers all the other documents in these proceedings.

F.   DISPOSITION

67.I direct that in order to lodge an appeal against the August Decision, leave to appeal is required.  Subject to the short-term interim stay mentioned in [63] above and the leave granted in [65] above, I dismiss the Wife’s Summonses.

68.Costs should follow the event.  The short-term interim stay as set out in [63] above is an indulgence granted to the Wife, and the time spent on the leave mentioned in [65] above is minimal.  These matters should not affect the overall position on costs.  I order that costs of the Wife’s Summonses be paid by the Wife to the Brother and to the Company forthwith.  The costs payable to the Brother are summarily assessed at HK$150,000, and the costs payable to Company are summarily assessed at HK$200,000.

69.Since a redacted version of the August Decision has been published, I am minded to publish this decision as well. I direct that the parties do inform the court by a joint letter within 35 days whether any part of this decision should be redacted before publication; if yes, which part(s) of this decision should be redacted in the published version.

70.I thank all counsel for the helpful assistance rendered to the court.

Mr William Wong SC leading Alex Yeung, instructed by Simmons & Simmons, for the Plaintiff

Mr Lai Chun Ho, instructed by Lawrence Chan & Co, for the 2^nd Defendant

Mr Frederick HF Chan, instructed by Nixon Peabody CWL, for the 3^rd Defendant