Beijing Renji Real Estate Development Group Co., Ltd v. Zhu Min

HCA 189/2025

[2025] HKCFI [1480]

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 189 OF 2025

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REASONS FOR DECISION

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Introduction

1.At the hearing on 8 April 2025 (“April Hearing”), this Court dismissed the Plaintiff’s leave to appeal summons dated 20 February 2025 (“Leave Summons”) against this Court’s oral decision (“Oral Decision”) delivered at the hearing on Friday 7 February 2025 (“the hearing”). That Oral Decision dismissed the Plaintiff’s application for interim interim receivership relief.

2.By the Leave Summons dated 20 February 2025 heard on 8 April 2025, the Plaintiff sought leave to appeal against this Court’s Oral Decision, before this Court had time to write its written Decision as defined below, arising from the innocent mistake of this Court’s clerk in approving the misconceived draft Order prepared by the Plaintiff’s solicitors, Nixon Peabody CWL, that this Court had dismissed the entirety of the Plaintiff’s summons dated 4 February 2025 (“Summons”). That Summons was filed just 2 days before the hearing on 7 February 2025, with 30 minutes reserved.

3.That Summons eventually lasted an hour with Mr Lai then acting for the Plaintiff lasting for the bulk of it, and asked for 2 things: (i) in para 1, a substantive application for the appointment of receivers; and (ii) in para 2, pending the substantive determination of para 1, interim interim relief in the same terms as sought in para 1. The Defendant made it plain in Mr Lok’s skeleton for the hearing on 7 February 2025 that there was not enough time to deal with the substantive determination but submitted that no interim interim relief should be granted – rather, the interim interim application for the appointment of receivers should be deferred to another date with 1 day reserved and there should be directions for the filing of evidence by both parties.

4.As can be seen from (i) the skeleton of Mr Lai at the 7 February hearing, (ii) this Court’s letter dated 26 March 2025 which made it plain what this Court had decided at the 7 February 2025 hearing; (iii) the transcript of the hearing on 7 February 2025, as well as (iv) this Court’s Reasons for Decision dated 28 March 2025 (“Written Reasons”), that this Court has done nothing of that sort as alleged by the Plaintiff. This Court had only dismissed the Plaintiff’s application for interim interim relief as per para 2 of the Summons on the grounds stated in the Written Reasons. This was pointed out to Mr Chong at this hearing who accepted that this Court had not dismissed the entirety of the Summons. But he submitted that this Court’s clerk and Mr Lok, as shared by his instructing solicitors’ misconception of what actually happened. Further, at the April Hearing, Mr Chong said he was bound by his client’s instructions, presumably owing to his client’s costs consideration.

5.Costs of the hearing on 7 February 2025 was to be determined summarily on paper. The Defendant was to submit its statement of costs within 3 days. The Plaintiff was given 3 days to file its notice of objection to the Defendant’s bill of costs for summary assessment.

Deliberation

6.This is a most unfortunate case.

7.Ultimately, the Plaintiff’s concern was about the costs of the Summons by pretending to ignore RHC O1A that the parties and their legal representatives shall assist the court to further the underlying objectives of the RHC, which we all know too well.

8.As can be seen from para 3 of Mr Chong’s skeleton and the open offer from the Plaintiff’s solicitors mentioned by Mr Chong at the April Hearing, supplied to this Court by letter the next day on 9 April 2025, it was all a matter of costs. In the open offer of the Plaintiff’s solicitors at para 2 of that letter, it was stated that:

“ 2. The open offer is set out under paragraphs 3 and 6(6) of the Plaintiff’s skeleton submissions filed on 3 April 2025:

(1) the costs order in the “Sealed Order” should also be amended and confined to costs of the hearing on 7/2/2025 (“Hearing”), as opposed to the Receivership Summons as a whole;

(2) D accepts that this Court (and another Court hearing the Receivership Summons) is not functus;

(3) there should be no order as to costs for P’s Leave Summons. Alternatively, the Leave Summons should be in the cause of the Receivership Summons;

(4) the undertaking given in D’s skeleton (that D will reverse the shares back to himself) should form part of the Order.”

9.In the end, at the April Hearing, this Court enquired with Mr Lok and he stated that he only disagreed with the Plaintiff’s open offer concerning costs of the Leave Summons. That was understandable given that the Plaintiff’s interim interim relief application had failed at the hearing on 7 February 2025. Hence, the court’s time and the judiciary’s resources at the April 2025 hearing were spent on that basis.

10.Notwithstanding (i) the fact that in the Plaintiff’s skeleton dated 4 February 2025 at paras 1 – 3, especially para 2, that Mr Lai for the Plaintiff submitted that it only sought interim-interim relief against the Defendant; (ii) Mr Lai’s indication at the beginning of his oral submissions at the 7 February 2025 hearing, evidenced by the transcript, that he had put in a comprehensive set of submissions to seek interim interim relief at that hearing; (iii) this Court had dismissed that application at that hearing, evidenced by the transcript; (iv) this Court only found out on 26 March 2025 and explained to the parties by letter that this Court’s clerk had made an innocent mistake in approving the Plaintiff’s draft Order stating that this Court had dismissed the entire Summons; (v) this Court’s Reasons for Decision explaining it had only dismissed the application for interim interim relief, Mr Chong, on instructions from the Plaintiff, insisted that this Court had dismissed the entire Summons and sought leave to appeal on that basis.

11.This court had told Mr Chong that he had a duty to properly advise his client, but to no avail. Mr Chong also insisted that despite this Court’s letter dated 26 March 2025 pointing out the mistake, it appears that Mr Chong felt he was bound by his client’s instructions to proceed with the leave application on the misconceived basis. Mr Chong was also equivocal as to whether this Court could or could not vary the Order approved by this Court’s clerk, on the basis that this Court was functus and could not, as a matter of law, vary that misconceived Order, whether under this Court’s inherent jurisdiction or under the Slip Rule.

12.Since Mr Chong’s leave to appeal application was on a misconceived premise, this Court had no valid basis to deal with his leave application. This Court asked Mr Chong for authorities in support of his application but none to the point was provided to this Court.

13.The long and short of it all was that this Court dismissed his application on the basis that it had no reasonable prospect of success and there were no reasons in the interest of justice why the appeal should be heard.

14.Mr Lok, on the other hand, had referred this Court to 3 relevant and useful authorities.

15.First, NPYJ v SMRC [2018] 1 HKLRD 573 in which Lam VP (as he then was) observed at [8] that:

“The Court of Appeal is not the forum for the parties to make a second attempt when they fail/ in the first instance, just hoping that the Court of Appeal or judges in the Court of Appeal will form different views on the weight to be attached to a particular factor. That is not a proper use of an appeal. As we have said on a number of occasions, in an appeal against discretion, the court is not to exercise the discretion by the members of the Court of Appeal as if we were sitting in the Court of First Instance. We only examine whether there is any error on the part of the judge which is so plainly wrong. And in the present context, I would adopt the wording of Butler-Sloss J, unless it is extremely plain that the judge has gone wrong, parties should not come to this court.” (emphasis added)

16.Second, China Shanshui Cement Group Limited v Zhang Caikui unrep. CAMP 58 of 2018, [2018] HKCA 409 at [15] to [17] again by Lam VP (as he then was):

“15. Given the short lifespan of interim interim relief and the high discretionary nature of a first instance decision on the grant and refusal of relief, the Court of Appeal would rarely interfere with such decision: see NPYJ v SMRC [2018] 1 HKLRD 573.

16. As we said, the court will only consider granting interim interim relief when it does not have sufficient time or fair opportunity to consider an application for interlocutory relief fully. Hence whatever views formed at such hearing and whatever decisions made must be provisional, open for further arguments and revisiting in the future. But it does not follow that it would be wrong for the court to form some provisional view on the arguability or merit of a plaintiff’s case. We do not think the judge were wrong to consider this aspect of the case in deciding whether interim interim relief should be granted.

17. The extent to which a judge give weight to the merit on an issue in a particular case depends very much on the context and there are obviously other factors at play including the effect of the grant or refusal of the relief and the subject matter at stake. It is a multi-facet assessment and, as we said, an exercise with high discretionary margin accorded to the first instance judge.” (emphasis added)

17.Third, To Pui Kui v Ng Kwok Piu [2023] 5 HKLRD 278 at [20], Barma JA observed that:

“20. The principles applicable to the slip rule in RHC Order 20 rule 11 have been conveniently summarised by G Lam J (as he then was) in Lo Yuen Chong v IWS Environmental Technologies Limited [2021] HKCA 89 at [17] to [19] as follows:

‘17. Order 20 rule 11 (often called the ‘slip rule’) provides:

‘Clerical mistakes in judgments or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court on summons without an appeal.’

18. The jurisdiction of the court to correct mistakes under the slip rule or its inherent jurisdiction has been described by Godfrey JA in Skink Ltd (in liquidation) v Comtowell Ltd [1998] 1 HKLRD 542 at 543G as follows:

‘The court has an inherent power to vary its own orders so as to carry out its own meaning and to make that meaning plain; and an express power (under R.H.C. (Cap. 4 Sub. Leg.) O.20 r.11) to correct any error in any order resulting from an accidental slip or omission. But these powers extend only to the correction of errors in expressing the court’s intention. The court has no power to correct mistakes of its own; even where it is satisfied that it has indeed made such a mistake.’

19. To be capable of being corrected in this way, the error or omission must be an error in expressing the manifest intention of the court: Li Tze Cho v Ching Hua Co (H.K.) Ltd (No. 3) [1961] HKLR 201, 205; MKKWH (also known as MKGWH) v RKSH [2018] HKCA 395, §§63‑68; Bank of China v Xinyuan Trading Co Ltd (CACV 276/1998, 21 June 2000), p 3; see also R v Cripps, ex parte Muldoon [1984] QB 68, 80‑81. As Ribeiro PJ said in Man Ping Nam & another v Man Fong Hang (No. 2) (2007) 10 HKCFAR 140 at §10, the court has power to clarify the original order ‘if the court’s intention appearing from the body of the judgment is manifest’.

Discussion

21. In our view, the key question is whether the slip rule or the inherent jurisdiction of the court is engaged at all. As explained in the authorities cited in Lo Yuen Chong set out in the previous paragraph, in particular the statement of Godfrey JA in Skink Ltd (in liquidation) v Comtowell Ltd [1998] 1 HKLRD 542, the slip rule permits clerical errors in orders to be corrected where the order does not, as a result of the error, properly reflect the manifest intention of the court appearing from its judgment. The inherent jurisdiction permits the court to vary an order to carry out its meaning and clarify that meaning. But in both cases, it is only permissible to correct an error in the expression by the order of the court’s intention.” (emphasis added)

18.As for this Court’s exercise of its discretion in refusing the application for interim interim relief, the grounds were stated in the Reasons. This court regrets that Mr Chong, who did not appear at the hearing on 7 February 2025, could have alleged at paras 11 to 14 of the draft amended Notice of Appeal attached to his skeleton, which replaced the one in Bundle A, that there was a lack of fair hearing, apparent bias and breach of natural justice. This court interrupted Mr Lai at the hearing on 7 February 2025 when the case had substantially overrun and Mr Lai appeared to have no intention to stop and was venturing into Mr Lok’s time for making his submissions. This Court does not understand why there was a fundamental breach of due process when Mr Lai had himself exhausted the time slot his solicitors had chosen to reserve for the entire hearing on 7 February 2025. Is Mr Chong seriously suggesting that in order for this Court not to commit a breach of due process, it must give Mr Lai unlimited time to move his application for interim interim relief and then allow him to venture into the substantial application for receivership, when at the very beginning of his written and oral submissions, he only asked for interim interim relief ?

19.From the transcript, it can be seen that this Court had given Mr Lai more than his fair share of the hearing time on 7 February 2025. The fact that his instructing solicitors had underestimated the time taken to apply for interim interim relief cannot be accepted as a valid justification of Mr Lai’s conduct. From experience, solicitors, not unusually, underestimate, deliberately or otherwise, the time estimate for a hearing, in order to get an early date to please their clients. This Court will leave it to the Court of Appeal to decide whether there was (i) a lack of fair hearing; (ii) apparent bias, (iii) breach of natural justice and (iv) this Court had placed unwarranted and unfair pressure on Mr Lai such that his ability to present the Plaintiff’s case was impeded.

20.At the end of the day, Mr Chong and his instructing solicitors smeared this Court on the excuse that they are bound by their client’s instructions.

Mr Patrick Chong, instructed by M/s Nixon Peabody CWL, for the Plaintiff

Mr Michael Lok and Ms Valerie Kwok, instructed by M/s Jones Day, for the Defendant