Dadra Inc. v. Chan Choi Har Ivy

CACV 74/2023, [2025] HKCA 111

On Appeal From [2023] HKCFI 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 74 OF 2023

(ON APPEAL FROM HCA NO 1756 OF 2019)

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BETWEEN

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JUDGMENT

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

1.This is the Defendant’s application for leave to appeal against the judgment of this Court dated 16 August 2024 (“the CA Judgment”), whereby the Court dismissed the Defendant’s appeal against the order of Master Phoebe Man dated 10 March 2023 (“the Order”) that the Defendant be imprisoned for a period of 6 weeks by reason of her wilful failure to make a full disclosure as required under Order 49B, rule 1A(2) of the Rules of the High Court, Cap 4A.

2.The basic facts of this case and the Court’s reasons for dismissing the Defendant’s appeal are fully set out in the CA Judgment and will not be repeated here. In this Judgment, unless the context indicates otherwise, we shall continue to use the expressions and abbreviations as defined in the CA Judgment.

3.In the Defendant’s Notice of Motion dated 13 September 2024 seeking leave to appeal to the Court of Final Appeal, she contends that the following question (“the Question”) is a question involved in the intended appeal which, by reason of its great general or public importance, ought to be submitted to the Court of Final Appeal for decision:

“Whether a High Court Master would only have the jurisdiction to make an order for the imprisonment of a judgment debtor who has been adjudged bankrupt under O 49B, r 1B(1)(c) of the RHC on the ground that he has wilfully failed to make full disclosure as required under O 49B, r 1A(2) of the RHC if leave has been expressly sought and granted under s 12(1) of the Bankruptcy Ordinance (Cap 6) (“BO”) for the judgment creditor to proceed with or commence an application for an order for the imprisonment of such debtor under O 49B, r 1B(1)(c) of the RHC.”

4.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.We do not accept the Question to be a question of great general or public importance.

6.In the recent judgment of the Court of Final Appeal in V Capital Ltd v Chiu Margaret [2024] HKCFA 31, the Court of Final Appeal answered in the negative the following question: “whether a Master has jurisdiction under O.49B r.1B(1)(c) to order imprisonment of a bankrupt judgment debtor for wilfully failing to make full disclosure as required under O.49B r.1A(2) in the absence of leave to proceed under BO s.12”.

7.In the present case, the Court proceeded on the basis that leave to proceed under BO s 12 was required, and held that such leave had been obtained by the Plaintiff under the Order to Proceed made by Master J Wong on 10 October 2022. The Court held, based on the true construction of the Order to Proceed considered in the light of the relevant surrounding circumstances and other relevant provisions of Order 49B (see §§35-40 of the CA Judgment), that the Order to Proceed covered not only the Plaintiff’s application for the oral examination of the Defendant, but also its application for an order of imprisonment of the Defendant.

8.Insofar as the Defendant contends that leave to proceed under BO s 12 must be given “expressly”, we can see no reason or basis in principle for such contention, and insofar as it is contended that, upon the true construction of the Order to Proceed, leave under BO s 12 had not given by Master J Wong, this is not a question of great general or public importance.

9.Mr Kwan (for the Defendant) makes no submission on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, acknowledging the well-settled practice of this Court to defer to the Appeal Committee of the Court of Final Appeal for consideration of whether leave to appeal ought to be granted under the “or otherwise” limb. We see no good reason to depart from this practice in the present case.

10.Accordingly, the Notice of Motion is dismissed with costs to the Plaintiff, which we summarily assess in the sum of HK$120,000.

11.For the avoidance of doubt, the Defendant’s application for a stay of execution of the Order pending the Defendant’s intended renewed application to the Appeal Committee of the Court of Final Appeal for leave to appeal is refused.

Mr Man Hon Chiu and Mr Johnson Cheung, instructed by Peter Cheung & Co, for the Plaintiff

Mr Steven Kwan and Mr Jeff Yau, instructed by ONC Lawyers, for the Defendant