Yao Guoliang and Another v. Forever Winner Interntional Ltd and Others

HCMP 2442/2024 &
HCMP 2297/2025
(Heard Together)

[2026] HKCFI 3805

HCMP 2442/2024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2442 OF 2024

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AND

HCMP 2297/2025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2297 OF 2025

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(Heard Together)

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D E C I S I O N

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I.  INTRODUCTION

1.After I handed down my Decision on 2 March 2026 (the “Decision”) ([2026] HKCFI 1146) setting aside the Order 52 Leave and dismissing the Contempt Proceedings, on 16 March 2026, Yao and Jin Yao filed a Summons (the “Ps’ Summons”) for:-

(1)  §1: A direction under Order 59 rule 21(1)(a) of the Rules of the High Court (Cap. 4A) as to whether leave to appeal against the Decision is required; and

(2)  §2: If leave to appeal is required, an order that leave to appeal be granted per the draft Notice of Appeal (the “DNOA”) annexed to the Ps’ Summons.

2.The Ps’ Summons also sought (by §3) for an order of stay of the costs order I made in the Decision. Ms Catrina Lam SC, leading Ms Lilian Ip, counsel for Yao and Jin Yao, very sensibly, no longer pursues this relief.

II.  WHETHER LEAVE IS REQUIRED

3.Leave to appeal is required for interlocutory order, and whether an order is interlocutory or final depends on whether a substantive right is determined. If it is, then it is final. If it is not, then it is interlocutory. Therefore, for example, a refusal of amendment of a pleading to introduce a new claim or defence is regarded as final: see Order 59 rule 21(2)(i), because such a refusal would effectively be a determination of the rights under the proposed amendment.

4.In the present case, setting aside the Order 52 Leave means effectively a determination that Yao and Jin Yao have no right to proceed.  Such determination was logically followed by the dismissal of the Contempt Proceedings. All these are, in my view, final determinations of substantive rights, and therefore, no leave to appeal is required against setting aside the Order 52 Leave and the dismissal of the Contempt Proceedings.

5.Mr Jose Maurellet SC, leading Mr Sik Chee Ching, fairly takes the same view that no leave to appeal is required.

6.A point was apparently taken in the affirmation that the appeal against the costs order would require leave. Mr Maurellet, rightly, does not take this point in his submissions. Such costs order is part of and consequential on the final order. Therefore, no leave is required.

7.Therefore, on paragraph 1 of the Summons, my directions are that the Decision is final and leave to appeal against the Decision is not required.

III.  LEAVE WOULD NOT BE GRANTED

8.For the sake of completeness, I shall briefly explain why I would not grant leave to appeal, should such leave be required.

9.In my view, save for one ground, the DNOA is essentially a re-run of the arguments made at the substantive hearing before me. For the reasons I gave in the Decision, I see no reasonable prospects of success in those grounds.

10.The only one ground that is not a re-run is Ground 3 that would require fresh evidence admitted under Ladd v Marshall. The fresh evidence is the reverse sides of the Share Certificates being blank instruments of transfer. The argument seems to be that with the blank instrument of transfer at the back of the Share Certificates, “whoever had physical possession of [the Share Certificates] had the ability to set the transfer machinery in motion”, and because Wang was in control of Forever Winner, he had the ability to execute the instrument of transfer on behalf of Forever Winner, and therefore the Share Certificates were not mere certificates but carried the underlying Shares. I would tend to agree at this stage that this fresh evidence would have material impact on the outcome.

11.Yao’s explanation for the delay in this fresh evidence is that he was not aware that the reverse sides of the Share Certificates were not exhibited until the hearing on 16 February 2026. I would think that this explanation would constitute no good reason – had Yao exercised reasonable diligence, Yao would have been aware of (1) a potential argument that the Share Certificates themselves would constitute no value; (2) the significance of the reserve sides of the Share Certificates; and (3) the absence of the reverse side in the evidence. The fact that he could now himself produce the reserve sides shows that such evidence has always been available to him but just that without due diligence, he failed to appreciate the significance of the reserve sides.  

12.Without good reason for the delay, such fresh evidence would unlikely be admitted. Without such fresh evidence, Ground 3 would be a re-run of the arguments at the substantive hearing before me, and I see no reasonable prospects of success in this ground.

13.Therefore, if leave to appeal would be required, I would refuse leave.

IV.  CONCLUSION

14.In the premises, I direct that the Decision is final and leave to appeal against the Decision is not required. For costs, given that there seems to be no cases on whether an appeal against setting aside the Order 52 leave would require leave, and I can understand why Yao and Jin Yao, being reasonably prudent, would like to seek the Court’s directions on this question, I would order costs of §§1 and 2 of the Ps’ Summons be in the appeal.

15.However, for §3 of the Ps’ Summons, seeking to stay the costs order in the Decision, although it is no longer pursued, such position of not pursuing is indicated only in Ms Lam’s submissions. Prior to that, Wang had proceeded on the basis that this would still be pursued – in fact, Mr Maurellet’s submissions dealt with §3 of the Ps’ Summons substantially. In the circumstances, I make a costs order nisi that Yao and Jin Yao shall pay the costs of §3 of the Ps’ Summons to Wang to be summarily assessed on paper. For the paper assessment, Wang shall lodge and serve a statement of costs within 3 days from today, and Yao and Jin Yao shall serve a list of objections within 3 days thereafter.

16.Lastly, I thank counsel for their assistance.

Ms Catrina Lam SC, leading Ms Lilian IP, instructed by Minterellison LLP, for the 1^st and 2^nd Plaintiffs in HCMP 2442/2024 and the 1^st and 2^nd Plaintiffs in HCMP 2297/2025

Mr Jose Maurellet SC, leading Mr Sik Chee Ching, instructed by DLA Piper Hong Kong, for the 2^nd Defendant in HCMP 2442/2024 and the Defendant in HCMP 2297/2025