Hero Investments Ltd v. Tsang Kwong Chiu Kevin and Others

HCA 1577/2018

[2024] HKCFI 2776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1577 OF 2018

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BETWEEN

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(By Original Action)

AND BETWEEN

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(By Counterclaim)

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DECISION

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1.On 2 September 2024, I handed down my judgment dismissing Hero’s claim by Original Action and adjudicating in favour of Tsang’s Counterclaim against Hero and Hong.

2.In §169 of the judgment, I directed the parties to attempt to agree on the order/directions regarding the payment out or otherwise disposal of:

a. The payment into court of HK$15,703,180 by Tsang, Oxley and Corporate Capital (“the 3 Defendants”) on 23 July 2018 to discharge the Mareva Injunction obtained by Hero; and

b. The payment into court of HK$1,000,000 by Hero on 27 July 2018 as fortification of its undertaking as to damages in respect of the Mareva injunction.

3.In the meantime and on 30 September 2024, Hero and Hong lodged an appeal against my said judgment.

4.The parties reported by their joint letter dated 7 October 2024 that they could not reach an agreement. Hero and Hong wish the HK$15,703,180 be kept in court until the determination of the appeal and the HK$1,000,000 be paid out. Conversely, the 3 Defendants wish the HK$15,703,180 be released to them and the HK$1,000,000 be kept in court.

5.Hero and Hong draw attention to the fact that Tsang is still facing a rather substantial claim as defendant in HCA 2766/2018 (which is not disputed in the joint letter by Tsang), and that once the money is released to him, their appeal might be rendered nugatory. On the other hand, Hong is not a resident in Hong Kong and the 3 Defendants have not indicated that they would not enforce the undertaking as to damages in case they successfully resist the appeal.

6.As the appeal is pending and in the circumstances, I think the fair and appropriate arrangement is to keep both sums in court as they now are until the determination of the appeal, at which time the parties can apply for their payment out according to the result of the appeal. Evidently, such an arrangement would work to the unfairness and disadvantage of the 3 Defendants if Hero and Hong do not prosecute the appeal with due diligence. I therefore so order as above indicated but give parties liberty to apply in case such eventuality (or other pertinent circumstances) occurs.

Messrs Chen & Lee Law Office, for the Plaintiff (by Original Action) and the 1^st to 2^nd Defendants (by Counterclaim)

Messrs Wan Yeung Hau & Co. for the 1^st to 3^rd Defendants (by Original Action) and the Plaintiff (by Counterclaim)