Tw Recovery Ltd (in Creditors’ Voluntary Liquidation) and Others v. Best Leader Precious Metals Ltd and Others

CACV 369/2023, [2026] HKCA 1736

On Appeal From [2023] HKCFI 2124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2023

(ON APPEAL FROM HCA NO 102 OF 2023)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.By our judgment dated 2 March 2026 in the 1^st plaintiff’s appeal, brought with leave of the judge below, we allowed the appeal and reinstated the Mareva injunctions against the 8^th, 9^th and 10^th defendants (“D8”, “D9” and “D10” respectively).  These defendants now seek leave to appeal to the Court of Final Appeal.  This is our decision on their motions.

2.The background and our reasons for allowing the appeal are set out in our judgment and will not be repeated in any detail here.  Suffice it to mention that the judge held that there was a good arguable case that over 1,300 persons were victims of a fraudulent investment scheme and D8, D9 and D10 were involved in it, and that there was a real risk of dissipation of assets by these defendants.  The judge refused Mareva relief on the grounds that (1) a good arguable case in relation to the quantum of the investors’ claims had not been established, there being “no evidence at all” for assessing an appropriate cap;[1] and (2) there was material non-disclosure at the ex parte stage regarding the double actionability rule.

3.We allowed the appeal on the basis, broadly, that there was evidence providing a real basis informed by the circumstances of the case capable of justifying the injunction with a lower ceiling than that sought from the judge, though the judge through no fault of her own did not take account of that evidence.  We also rejected the allegation of material non-disclosure, given that there was no reason at the ex parte stage to think that the double actionability rule would be relevant, and the rule was in fact not raised in the defences subsequently filed.

4.It is pertinent to note that the Mareva injunctions are interlocutory orders.  It has been said that interlocutory appeals to the Court of Final Appeal on procedural issues such as discovery should be rare and exceptional.  Leave will generally be refused unless it can be clearly seen that: (1) the proposed appeal genuinely raises a question of law of great general or public importance; (2) the result of the appeal would indeed turn on how that question is answered; and (3) such result is likely to make a significant contribution to the just disposal of the litigation: CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 at §1; Leung Ping Chiu Roy v Wai Wai Chen [2022] HKCA 1730 at §63.  We consider these principles to be applicable in the present case.

5.We turn to the questions that, the defendants submit, ought to be submitted to the Court of Final Appeal by reason of their “great general or public importance” under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

6.The question that D8 wishes to submit to the Court of Final Appeal is this:

“ In an application for a Mareva injunction, would the plaintiff be regarded to have shown a good arguable case on quantum, so as to justify the grant of an injunction up to a maximum amount, if (a) the plaintiff did not propose or attempt to substantiate that cap before the judge by reference to the mass of evidence and exhibits adduced by the plaintiff, but (b) there might be some evidence amongst that mass of evidence and exhibits which could have justified that or some other cap?”

7.We do not think that this is a question of great general or public importance.  The relevant principles concerning Mareva injunctions as set out in §§41-45 of our judgment are not under any attack.  Essentially D8 wishes to challenge this court’s decision in the particular and unusual procedural circumstances of this case that the judge’s assessment was vitiated because she did not appreciate there was some evidence going to the question of good arguable case in relation to quantum.  The question posed does not admit of a general answer.  It depends on the facts and circumstances of the individual case.  Our judgment does not impose any new burden on first instance judges hearing applications for injunctions.

8.D9 has advanced the following two questions:

(1)  For the purpose of an interlocutory application, can a plaintiff rely on documents contained in a medium (such as an USB) when the documents themselves are not exhibited to the affidavit and only the medium is exhibited to the affidavit, and when there is no front page setting out the list of the documents contained in the medium with the dates, having regard to the requirement in RHC O.41 r.11 and Practice Direction 10.1?

(2)  Can (and if so to what extent) the Court of Appeal interfere with the factual finding of the judge below when the relevant factual finding of the judge has not been challenged by the appellant in the Notice of Appeal?

9.As to D9’s first question, it should be noted that the plaintiffs explained in their affirmation that the reason for using electronic medium for submitting the particular documents in question was that those documents were very voluminous and that they believed it would be a disproportionate use of resources to produce all those records in printed form, indicating at the same time that they would produce printed documents if required by the court.

10.RHC Order 41 rule 11 provides:

“ (1) Any document to be used in conjunction with an affidavit must be exhibited, and not annexed, to the affidavit.

(2)  Any exhibit to an affidavit must be identified by a certificate of the person before whom the affidavit is sworn. …”

11.The part of Practice Direction 10.1 relied on by D9 is §4(d), which provides:

“ (d) Where a number of documents are contained in one exhibit, a front page must be attached, setting out a list of the documents, with dates, which the exhibit contains, and the bundle must be securely fastened. Any means of securing the bundle (except by staples) is acceptable, provided that it does not interfere with the perusal of the documents and it cannot readily be undone.”

12.Neither provision was relied upon by D9 in the appeal before this Court.  Had they been raised, any irregularity could have been waived under Order 41 rule 4.  In any event, it seems to us that neither the Rules nor the PD preclude electronic documents from being “exhibited” through an electronic medium such as USB.  On the contrary, the court is required to further the underlying objectives of the Rules (including increasing the cost-effectiveness of practice and procedure and promoting a sense of reasonable proportion and procedural economy – see Order 1A rule 1(a) & (c)) by active case management, including “making use of technology”: Order 1A rule 4(2)(k).

13.The first question does not in our view raise any arguable point or any question of great general or public importance that should be submitted to the Court of Final Appeal.

14.D9’s second question is in our view misconceived.  On an application for Mareva injunction, the court seeks to make an assessment of the strength of the plaintiff’s case, using the yardstick of good arguable case.  The court does not conduct a trial whether on oral evidence or on affidavit, and does not make findings of fact.  In any event the passage in the judge’s judgment relied on by D9 is the judge’s recitation of the defendants’ case, not a finding.  Where the lower court’s exercise of discretion in relation to an interlocutory injunction is vitiated, the appellate court is entitled to exercise that discretion afresh.  In doing so the appellate court may engage in an assessment based on all the evidence.  The question posed does not arise and is in any event too general to be a proper question to be submitted to the Court of Final Appeal.

15.D10 has put forward three questions as follows:

(1)  Notwithstanding the Court of Appeal’s general power to entertain new points of appeal, is the Court of Appeal entitled to intervene and exercise the trial judge’s discretion afresh, particularly in Mareva proceedings, when legal representatives for the appellant(s) had not raised any argument, advanced any position and/or drawn the trial judge’s attention to adduced evidence which is pertinent to that discretion in the lower court in view of the principles regarding the “state of the evidence” bar laid out in Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 and subsequent authorities?  If so, how should that power be exercised?

(2)  What is the dividing line, if any, between the absolute bar to taking new fact-sensitive points on appeal described in Law Society of Hong Kong v A Solicitor (CACV 78/2014, 10^th July 2015) and the appellate court’s general power to consider whether to entertain new points, whether of fact or law?  How much deference, if any, should be given to a respondent’s factual case in determining whether evidence might have taken a different course in the court below had the new points been taken below, such that the new point would be absolutely barred?

(3)  What is the weight to be given, if any, and considerations to be taken into account by the Court of Appeal in exercising its discretion to entertain new points of appeal (whether of fact or law) as to whether and/or when a respondent objected to a matter at first instance for which the burden of proof rests entirely on the applicant?

16.These three questions all seek to challenge this court’s exercise of discretion to grant a Mareva injunction with a lower monetary ceiling of US$150 million, on the ground that the figure and the arguments justifying it were not put forward before Cheng J below.  We agree with Ms Sit SC’s submissions for the 1^st plaintiff that the Flywin doctrine as a “discretionary principle”[2] is well established: see Flywin Co Ltd v Strong & Associates Ltd at §§37-39; Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288 at §§20‑24; Re Qin Jun (No. 2) [2018] 5 HKLRD 562 at §6.  A question of great general or public importance does not arise simply because a party disputes how principles already authoritatively laid down should be applied to the facts of a particular case.  Further, questions such as “how much deference” should be given to a respondent’s factual case and “what weight” should be placed on certain matters in the Court of Appeal’s consideration of whether to entertain new points are plainly not questions capable of any general answer in the abstract and not suitable questions to be submitted to the Court of Final Appeal.

17.All three defendants rely also on the “or otherwise” limb of section 22(1)(b).  Following established practice, this ground is to be left to the application, if any, to the Appeal Committee of the Court of Final Appeal.

18.The applications of D8, D9 and D10 are therefore dismissed.

19.D8, D9 and D10 have to pay the 1^st plaintiff’s costs of the applications, each in the summarily assessed sum of $90,000.

Written submissions by Ms Eva Sit, SC and Mr Jonathan Fung instructed by Messrs. Withers, for the 1^st Plaintiff

Written submissions by Mr Jat Sew-Tong, SC and Mr Thomas Wong instructed by Messrs. DLA Piper Hong Kong, for the 8^th Defendant

Written submissions by Mr James Man instructed by Messrs. So, Lung & Associates for the 9^th Defendant

Written submissions by Mr Jonathan Kwan and Mr Ivan Suen instructed by Messrs. Stevenson, Wong & Co. for the 10^th Defendant

[1]  §56 of the judge’s decision.

[2]  Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288 at §20.