Xy, Llc v. Jesse Zhu (Aka Jia-bei Zhu and Jesse Jia-bei Zhu) and Another

CAMP 337/2023, [2024] HKCA 653

On Appeal from [2023] HKCFI 1317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 337 OF 2023

(ON AN INTENDED APPEAL FROM HCA NO 3039 OF 2016)

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BETWEEN

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D E C I S I O N

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Hon Au JA (giving the Decision of the Court):

A. INTRODUCTION

1.This is the 2^nd defendant’s (“GNT”)  renewed application for leave to appeal against the order of Wilson Chan J (“the Judge”)  dated 16 May 2023 (“the Order”).

2.By the Order, the Judge dismissed GNT’s appeal against Master Dick Ho’s refusal of its application for security for costs against the plaintiff[1].  The Judge has set out his reasons for the Order in his written judgment of the same date (“the Judgment”).

3.On 20 October 2023, by his written decision (“the Leave Decision”), the Judge also dismissed GNT’s application for leave to appeal against the Order.

4.The parties have respectively filed their written submissions.  Pursuant to Order 59, rule 2A(5)  of the Rules of the High Court (Cap 4A)  (“the RHC”), we find it appropriate to deal with this application on papers.

B.  BACKGROUND

5.The plaintiff is a company incorporated in the United States.  The 1^st defendant (“Zhu”)  is a Canadian businessman.  GNT is a BVI company.  It is the plaintiff’s case that GNT is beneficially owned and controlled by Zhu.  GNT holds a bank account with HSBC Hong Kong (“HK Account”)  which had HK$38 million odd in it as of 2014.[2]

6.In 2004, the plaintiff and a corporate vehicle owned and operated by Zhu signed a commercial licence agreement, by which Zhu’s corporate vehicle acquired certain rights in using the plaintiff’s technology upon payment of royalties.  Subsequently, disputes arose concerning the conduct of Zhu and his associates in respect of the agreement.  The disputes led to multiple sets of litigations in both Canada and Hong Kong.

7.The parties’ litigation history is set out by the Judge at [6] - [17] of the Judgment.  We shall only mention those pertinent to the present leave application:

(1)  On 2 March 2012, the plaintiff obtained a monetary judgment in the sum of HK$50 million odd against Zhu and others (not including GNT)  from a Canadian court (“Monetary Judgment”).  Zhu’s attempt to overturn the judgment eventually failed when the Supreme Court of Canada refused to grant him leave to appeal.

(2)  Later, with the information provided by one of Zhu’s former employees, Ms Selen Zhou (“Ms Zhou”), the plaintiff was able to identify GNT as a company and the shares and property of which are both beneficially owned by Zhu.  Ms  Zhou was also one of the defendants to the Monetary Judgment.  She was said to be heavily involved in running those companies (including GNT)  controlled by Zhu.  She rendered assistance to the plaintiff after a settlement agreement (“Settlement Agreement”)  was reached between the plaintiff and her, by which her exposure under the Monetary Judgment would be limited in exchange for her providing useful information to the plaintiff: broadly speaking, the more the sum Ms Zhou could assist the plaintiff to recover from Zhu, the less she would have to pay the plaintiff under the Monetary Judgment.

(3)  On 27 March 2014, the plaintiff obtained from a Canadian court a worldwide Mareva injunction against both Zhu and GNT, covering GNT’s HK Account (“Canadian Injunction”).

(4)  On 7 April 2014, the plaintiff obtained a Mareva injunction in Hong Kong in HCMP 869/2014 to mirror the Canadian Injunction.  In applying for the Mareva injunction, it was the plaintiff’s case that GNT and its assets were beneficially owned by Zhu.  GNT later applied to discharge the injunction, which was rejected by Queeny Au-Yeung J by a decision on 13 November 2015 (“Discharge Decision”).  On 5 December 2016, the Court of Appeal (“CA”)  dismissed GNT’s appeal against the Discharge Decision under CACV 11/2016 (“Appeal Decision”).  The CA refused to grant GNT leave to appeal on 29 March 2017 (“CA Leave Decision”).  The Court of Final Appeal (“CFA”)  also refused to grant leave in FAMV 21/2017 on 11 August 2017 (“CFA Leave Decision”).  We will refer to all these proceedings arising from the Hong Kong injunction collectively as the “s21M Proceedings”.

(5)  Relevantly, all the courts in the s21M Proceedings in upholding the Mareva injunction concluded that the plaintiff had a good arguable case against GNT that its assets are beneficially owned by Zhu.

(6)  On 21 November 2016, the plaintiff commenced the present action (under HCA 3039/2016)  in which the subject application for security for costs was made.  The core issue in HCA 3039/2016 as against GNT is whether GNT and its assets (including the substantial sum in the HK Account)  are beneficially owned by Zhu.

C.  THE JUDGMENT

8.The Judge started his analysis by identifying the general principles governing the court’s exercise of discretion in ordering security for costs against a plaintiff ordinarily residing out of jurisdiction.  The Judge, referring to various authorities,[3] reminded himself that, if a foreign plaintiff relies on the merits of its case to resist the application, it has to show that its case against the relevant defendant has a “very high probability of success”; and for that question, the court will not conduct a mini-trial or to make a preliminary run at the result ([18] - [20] of the Judgment).

9.The Judge then considered the merits of the plaintiff’s case and concluded that the plaintiff had a high probability of success against GNT.  The Judge explained his reasons at [27] - [31] of the Judgment as follows:

“27. The merits of the plaintiff’s case against GNT has been thoroughly analysed by the Court of First Instance and the Court of Appeal in respectively the Discharge Decision (HCMP 869/2014 (unrep, 13/11/2015))  and the Appeal Decision (CACV 11/2016 (unrep, 5/12/2016)).

28. In the Discharge Decision, Au-Yeung J had clearly found that there was a good arguable case that GNT’s asset were beneficially owned and controlled by Mr Zhu (at §31). Further, the court found that:

(1)  ‘There were assets of Jesse Zhu within the jurisdiction of Hong Kong. There was also evidence before L Chan J … that GNT was held by nominees for Jesse Zhu. So GNT was joined under the Chabra jurisdiction of the court …’ (at §28);

(2)  ‘There was a good arguable case that the Monetary Judgment can be enforced in Hong Kong and, specifically, against GNT as an asset of Jesse Zhu. The HK Mareva mirrored the Canadian Mareva’ (at §31);

(3)  ‘I repeat the matters in paragraphs 25-31 above. For this hearing, further evidence has been filed. There was evidence from Ms Zhou, James Yang and Kevin Xu (the ‘ex-employees’)  who gave affirmations as to entities (including GNT)  controlled/owned by Jesse Zhu. Their sworn evidence together with the emails between them and Jesse Zhu did not just show Jesse Zhu to be actively involved in the business of GNT because of its investment relationship with the IND group. There was evidence in the form of, for example, an email from Jesse Zhu to Ms Zhou to set up a bank account at the HSBC in order to receive substantial funds for GNT. The evidence reinforces a good arguable case that although Jesse Zhu has never been a director or shareholder of GNT, he controlled or owned GNT.’ (Emphasis added)  (at §33);

29. In the Appeal Decision, the Court of Appeal further affirmed the good arguable case that the funds in GNT’s HK Account are held beneficially for Jesse Zhu (at §§43, 49), in particular:

(1)  ‘[The plaintiff]’s case rests primarily on the evidence of Ms Zhou and the documents provided by her. The judge has considered GNT’s allegation that Ms Zhou had a strong motive to implicate GNT to reduce her own liability to [the plaintiff] and her evidence should be viewed with suspicion. As the judge has noted, this is an argument that had been raised by Jesse Zhu in the contempt proceedings in Canada and was rejected after a full trial with oral evidence. The judge could discern no basis to form a view different from that of the Canadian court. I am inclined to agree. The judge also examined the evidence before her independently. She was entitled to give such weight to Ms Zhou’s evidence as she saw fit, including the clear statement from Ms Zhou that Jesse Zhu was at all material times the beneficial owner of the assets of GNT.’ (Emphasis added)  (at §42);

(2)  ‘It is highly significant that Jesse Zhu was in control of the HK Account, that he was operating it, and was free to use the monies as he wished. In contrast, the directors of GNT had no access to the HK Account and had never provided instructions about the operation or handling of the bank account opened in the name of GNT.’ (Emphasis added)  (at §44);

(3)  There was evidence ‘showing that the assets of Jesse Zhu were to be transferred to GNT for the purpose of avoiding execution of his judgment debts. [It is not material] that [the plaintiff] was unable to adduce evidence that assets were actually transferred to GNT pursuant to the instructions in this email and so did not rely on actual transfer for present purpose’ (Emphasis added)  (at §45);

(4)  ‘Ms Wang asserted that the funds in the HK Account were proceeds of the repurchase by IND DairyTech of GNT’s shares in IND DairyTech and that GNT was beneficially owned by Peter Wang. She has not adduced material evidence (such as bank statements, company accounts, vouchers and the like)  to back up her assertion that the funds in the account came from the proceeds of the repurchase of shares, when she would be in a position to provide such evidence. Other than the fact that there was a substantial sum of $38 million odd in the HK Account when the HK Mareva was continued on 17 April 2014, no information was provided as to when and in what amount or amounts this substantial sum came to be deposited in the account. The court would expect to see a paper trail for the transfer or transfers of $38 million odd into the HK Account. There was none.’ (at §46);

(5)  ‘Even if the funds in the HK Account were proceeds of the repurchase of shares by IND DairyTech, this does not necessarily mean that the funds are the assets of GNT. Ms Zhou’s evidence is to the effect that Jesse Zhu had given away shares to ostensibly unrelated entities, including GNT, to create a false appearance there were other investors in the IPO. That being the case, if her evidence is accepted, GNT would, at least arguably, hold the shares transferred to it gratuitously for the purpose of giving a false appearance on a resulting trust for Jesse Zhu (Prest v Prest at §49), and likewise the proceeds derived from the repurchase of shares held by GNT would be held beneficially for Jesse Zhu.’ (Emphasis added)  (at §47);

(6)  The Judge was entitled to have ‘little regard to Ms Wang’s assertion that GNT and its assets were never owned by Jesse Zhu’ on the basis of the evidence, viz, ‘that she had not mentioned the specific source or sources of her knowledge and belief when she deposed to matters well before she became a shareholder of GNT in September 2014 and a director in January 2015. Her subsequent explanation of how she became a director and 50% shareholder in GNT because of ‘internal arrangement’ of Peter Wang’s family and her family (which she called the Wang clan in Qingdao), the details of which are ‘private and confidential’ and which she cannot disclose, does not have the ring of truth about it. Peter Wang had passed away in January 2014, before his wife transferred her shares in GNT to Ms Wang, and before her appointment as a director a few months after that.’ (Emphasis added)  (at §48)

30. The above findings were affirmed by the Appeal Committee of the Court of Final Appeal (FAMV 21/2017 (unrep, 15/08/2017))  which observed that ‘It is not in dispute that there is a good arguable case that Zhu beneficially owns GNT, a BVI company. However, GNT contends that no such arguable case had been made out regarding the bank account funds, seeking to distinguish between Zhu’s ownership of GNT and his alleged non-ownership of GNT’s assets. That argument failed below for impeccable reasons given by Au-Yeung J and the Court of Appeal, both of whom found that there was ample evidence to support the existence of the good arguable case in question.’ (Emphasis added)  (at §6)

31. Although the threshold in question was different, in my view, the findings by the Court of Appeal (especially at paragraphs 44, 45, 47 and 48 of the Appeal Decision)  are enough to lead to the conclusion that the plaintiff has a high probability of success against GNT in this action.” (emphasis added)

10.In gist, the Judge held that the evidence as identified by the three level of courts in the s21M Proceedings to support the conclusion that the plaintiff had a good arguable case against GNT, would also support the conclusion that the plaintiff had a high probability of success against GNT.

11.The Judge then further considered that the plaintiff’s position was strengthened by the fact that there were substantial costs orders granted in favour of the plaintiff against GNT in the various Hong Kong proceedings, with the total amount estimated to stand at HK$1.5 million.  These costs orders remained outstanding and would be available for a set-off in the case that costs were awarded against the plaintiff in this action ([32] - [33] of the Judgment).  As it will become clear below, GNT in this reapplication for leave to appeal no longer seeks to challenge this part of the Judge’s conclusion in its intended appeal[4].

D.  THIS APPLICATION

D1.  Proposed ground of appeal

12.For the purpose of this renewed application for leave to appeal, GNT has advanced a single ground of appeal in its draft Notice of Appeal (“draft NOA”), which could be summarized as follows[5].

13.First, GNT complains that the Judge has conflated the lower threshold of “good arguable case” for granting Mareva injunction with the stricter threshold of “very high probability of success” that a foreign plaintiff has to show before it could successfully resist a security for costs application.  This error is said to be evidenced by the Judge’s observation at [31] of the Judgment that “the findings by the Court of Appeal (especially at paragraphs 44, 45, 47 and 48 of the Appeal Decision)  are enough to lead to the conclusion that the plaintiff has a high probability of success against GNT in this action”.  Given that the “very high probability of success” test is a more stringent test than the “good arguable case” threshold, the Judge was therefore wrong in principle to refuse GNT’s application for security for costs effectively on the basis that the plaintiff had only demonstrated a good arguable case against GNT[6].

14.Second, it is contended that had the Judge not conflated the thresholds as submitted above, he ought to have taken into account various contentions and other evidence which were not before the courts in the s21M Proceedings but would be available at trial.  Had he taken these into account, he ought further to have concluded that the plaintiff had failed to show a very high probability of success[7].

D2.  Discussion

15.The following undisputable relevant principles apply to the consideration of this application.

16.To succeed in this application for leave to appeal, it is for GNT to show that the intended appeal has a reasonable prospect of success, or there is some other reason in the interests of justice why the appeal should be heard: see High Court Ordinance (Cap 4), section 14AA; SMSE v KL [2009] 4 HKLRD 125 at [17].

17.Further, the decision of the Judge in this case was one of exercise of discretion.  It is well established that the scope for the appeal court to intervene a judge’s exercise of discretion is a limited one.  The appeal court should defer to the judge’s exercise of discretion and must not interfere with it merely on the ground that it would have exercised the discretion differently.  Instead, the appeal court can only interfere where: (1)  the judge has misdirected himself with regard to the principles in accordance with which his discretion had to be exercised; (2)  the judge has taken into account matters which he ought not to have taken into account or failed to take into account matters which he ought to have taken into account; or (3)  his decision is plainly wrong.  See Re Mr Timothy Wynn Owen KC [2022] 5 HKLRD 726, at [18].

18.In our view, there is no arguable merit in the proposed ground of appeal.  We will explain why.

19.First, for the following reasons, it is plain to us that the Judge did not apply the wrong threshold in determining whether the security for costs order should be granted or not.

20.The Judge was plainly conscious, and had reminded himself, of the principle that the plaintiff had to demonstrate a “very high probability of success” in order to resist an application for security for costs, and in considering such question, the court would not conduct a “mini-trial” or to make a “preliminary run” at deciding the ultimate result.  See [18] - [20] of the Judgment.

21.It is also plain that the Judge was conscious of the difference between the threshold requirement for a Mareva injunction and that for resisting a security for costs order: in the very paragraph of the Judgment now sought to be relied on by Mr Tom Ng to argue that the Judge has conflated the two thresholds (see [13] above), the Judge indeed emphasised and acknowledged at the beginning of that paragraph that the two thresholds were different by stating that “Although the threshold in question was different”.  See the highlighted part of [31] of the Judgment quoted at [9] above.

22.In the premises, reading [31] of the Judgment objectively and in its proper context, what was said by the Judge was that those evidence which was found by the various courts in the s21M Proceedings to be capable of satisfying the threshold for granting Mareva injunction in the present case was, in his view, also capable of meeting the higher threshold that the plaintiff’s case had a very high probability of success.  This is a matter of assessment of the evidence at this interlocutory stage which is well within the Judge’s province in his weighing process, and has nothing to do with conflating the different thresholds.  See also the Judge’s own observation at [11] of the Leave Decision, which states:

“11.  It was within ‘the generous ambit within which reasonable disagreement is possible’ and not ‘plainly wrong’ for this court to conclude in §31 of the Judgment that the findings of the Court of Appeal and the evidence referred to in the Appeal Decision (especially at §§44, 45, 47 and 48 thereof), which were affirmed by the Leave Committee of the Court of Final Appeal, would entitle this court to be satisfied on the higher threshold of ‘high probability of success’. It was not just the conclusion but the findings and evidence leading to the conclusion that was relied upon.”

23.In this respect, Mr Tom Ng seeks to rely on Chinacast Education Corp v Chan Tze Ngon (HCA 1062/2012, 15 October 2015)  to further support his contention that the Judge had wrongly conflated the thresholds.

24.We do not think Chinacast assists Mr Tom Ng.

25.In Chinacast, the plaintiff, which had successfully obtained a Mareva injunction, was nonetheless later ordered to give security for costs.  If GNT seeks to rely on Chinacast to simply show that it is possible in a particular case for the court to come to the view that the interlocutory evidence of a plaintiff’s case could be strong enough to show a good arguable case but short of meeting the higher threshold of very high probability of success, that must be right.  Whether certain state of evidence is sufficient to support a plaintiff’s case with a very high probability of success is a matter of assessment of the evidence concerned and must thus be dependent on the particular circumstances and facts of each case.

26.However, Chinacast does not support GNT’s contention that the Judge had erred in principle in the present case in his exercise of discretion in conflating the thresholds.  As mentioned above, the Judge held that the particular evidence in the present case was strong enough to pass not only the good arguable case threshold but also the high probability of success threshold.

27.This takes us to GNT’s second complaint under the intended ground of appeal.

28.GNT’s 2^nd complaint is effectively a challenge to the Judge’s assessment of the evidence on the basis that he had failed to take into account certain relevant elements of GNT’s case and related evidence.

29.Mr Tom Ng contends that the Judge had erred in his weighing exercise in focusing only on the evidence that had been considered in the s21M Proceedings.  Counsel submits that the Judge ought to have also considered other parts of the evidence and arguments advanced in this security for costs application but not in the s21M Proceedings.  Had he done so, the Judge should have found that the plaintiff’s case fell short of meeting the “very high probability of success” threshold.

30.In support, Mr Tom Ng has identified the following two matters which he submits the Judge had failed to consider.

31.First, the Judge had failed to consider the following pleaded particulars in the Amended Defence and evidence in support of GNT’s arguments that the HK$38 million in the HK Account belongs to GNT legitimately:

(1)  The specific particulars relating to the source of funds in the HK Account which were introduced by way of amendments at paragraphs 8A-8B of the Amended Defence, which amendments were allowed by the Judge in the Judgment[8].

(2)  The “evidence” constituting the documents now contained in the present application bundles at B1/Tabs 14, 16, 20, B3/Tabs 28-33, and C3/Tabs 39-45.  Relevantly, they are GNT’s supplemental list of documents dated 8 December 2022 and copies of the HK Account’s bank statements said to show the source of funds in the account.

32.Counsel submits that these newly pleaded particulars and evidence could address the Court of Appeal’s remark in the Appeal Decision (which was relied upon by the Judge in the Judgment)  that there was no paper trail showing that the HK$38 million in the HK Account came from the legitimate source as GNT alleged.

33.Second, Mr Tom Ng contends that the Judge’s reliance on the following evidence and matters in his weighing exercise was “misplaced”:

(1)  The reliance on Ms Zhou’s evidence provided as a witness for the plaintiff was unjustified and wrong:

(a)  GNT has pleaded further particulars about Ms Zhou (at paragraphs 6 - 7 and 8C-8E of the Amended Defence, which amendments were allowed by the Judge)  which would put doubt on Ms Zhou’s credibility in her giving evidence against GNT[9];

(b)  In this respect, it is undisputed that the court in an interlocutory application should not “conduct a mini trial of the action” or to “peruse lengthy documents or more specifically witness statements which are documents that will be the subject of oral examination at trial”;

(c)  It was therefore wrong for the Judge to put apparently heavy weight on Ms Zhou’s evidence at this stage in finding that the plaintiff’s case had very high probability of success;

(2)  The reliance on the Monetary Judgment is also misplaced when GNT is not a party thereto and could not be bound by the factual findings therein, unless it could be shown that GNT is “privy” thereto; and

(3)  The reliance on the Discharge Decision is equally misplaced.  While Au-Yeung J (properly)  placed weight on the Canadian court’s view, this was in the context of assessing whether an interlocutory injunction should be discharged on the basis of alleged material non-disclosure of “the significance” of the Settlement Agreement and the implications on the “credibility of the evidence of the ex-employees” (See [58] of the Discharge Decision).  This is wholly different from the question the Judge was asked to consider, namely whether there was a high degree of possibility for the plaintiff to succeed at trial.

34.We find no arguable merits in these contentions.

35.As mentioned above, whether or not the evidence advanced by both sides at this interlocutory stage is sufficient to show that the plaintiff’s case against GNT has a very high probability of success is a matter of assessment of those evidence within the generous ambit of the Judge’s province in his weighing process.

36.In this respect, it is important to note that the Judge in his assessment did not only refer and rely on Ms Zhou’s evidence but also other various documentary evidence (such as emails), other witnesses’ sworn evidence and the various observations of Au-Yeung J and the Court of Appeal in addressing the same contentions now advanced by Mr Tom Ng in saying that Ms Zhou was not a credible witness and that GNT was not a party to the Monetary Judgment and the Canadian Judgment.  See: the highlighted parts of [28] - [30] of the Judgment quoted in [9] above.

37.Given the evidence as identified by the Judge, in our view, he was fully entitled to find that the plaintiff’s case had a very high probability of success (in particular when he was not to conduct a mini-trial at this stage).  The contentions now raised by Mr Tom Ng relating to the added pleaded particulars, the contended potential incredibility of Ms Zhou as a witness and the bank statements would not in our view materially affect the Judge’s said assessment to render it plainly wrong.

38.We also fully agree with and adopt the Judge’s reasons for finding this proposed ground of appeal unarguable as set out at [12] - [15] of the Leave Decision:

“12. GNT’s second main contention, namely that the court failed to take into account relevant matters, essentially relies on assertions that:

(1)  the credibility of the plaintiff’s witness, Ms Selen Zhou (‘Ms Zhou’), is ‘in serious issue in the light of the adverse findings against her in the [Monetary Judgment]’ and the incentive for her to assist the plaintiff ‘to recover as much as possible on the the [Monetary Judgment] in order to reduce her own liability’ (draft NoA: §3(b)); and

(2)  documentary evidence discovered by GNT ‘such as bank statements and document (sic)  involving independent third party’ that are alleged to show that the funds in GNT’s HK Account are the sale proceeds of shares in IND DairyTech Ltd registered in GNT’s name (the ‘Shares’)  (draft NoA: §3(c)).

13. Taking these complaints in turn, while it is the case that Ms Zhou’s evidence as a co-defendant with Zhu was criticised in the Monetary Judgment of the Supreme Court of British Columbia, this was prior to her settling with the plaintiff. Thereafter, Ms Zhou’s evidence was fully accepted in that court notwithstanding the financial incentive GNT refers to.

14. As referred to in §29(1)  of the Judgment, the Court of Appeal expressly found at §42 of the Appeal Decision that, in the Discharge Decision, Au-Yeung J was entitled to conclude that there was no basis for her to take a different view from the Canadian court of Ms Zhou’s evidence and she ‘was entitled to give such weight to Ms Zhou’s evidence as she saw fit, including the clear statement from Ms Zhou that Jesse Zhu [the 1^st defendant] was at all material times the beneficial owner of the assets of GNT.’

15.  As to GNT’s reliance on the funds flow documentary evidence, it is of little assistance to the analysis when it is Ms Zhou’s evidence that the assets of GNT (including the Shares)  were at all material times, and are, beneficially owned by Zhu, ie GNT was interposed by Zhu to conceal his ownership of the assets concerned.”

39.In other words, based on the available evidence (including those as identified and emphasized by GNT in this application), we find that it was plainly open to the Judge to conclude that the plaintiff’s case had a very high probability of success.  There is no arguable basis for this court to interfere with the Judge’s exercise of discretion.

E.  DISPOSITION

40.For all the above reasons, since the proposed ground of appeal has no reasonable prospect of success, we would not grant leave to GNT to appeal.  There is also no other reason in the interests of justice why the appeal should be heard.  The Summons dated 3 November 2023 is hereby dismissed.

41.There is no reason why costs should not follow the event.  We therefore further order on a nisi basis that costs of this application be to the plaintiff, to be summarily assessed by this court.  In its Statement of Costs, the plaintiff seeks the total sum of HK$133,882 as its costs (including counsel’s fee at HK$87,500).  We find this to be on the high side, given that the same team of solicitors and counsel have been involved in this matter before the Judge for the substantive hearing[10].  We would reduce it summarily to HK$100,000.  We therefore further order, also on a nisi basis, that the plaintiff’s cost is assessed at HK$100,000.  Unless any of the parties applies to vary it by way of summons, this costs order including its assessment shall become absolute 14 days from today.

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

Written Submissions by Mr Ernest Ng, instructed by Tanner de Witt Solicitors, for the Plaintiff

Written Submissions by Mr Tom Ng, instructed by Wilkinson & Grist, for the 2^nd Defendant