A.O.Smith Holdings (Barbados) Srl v. Zhang Dacheng
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HCCT 22/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTRUCTION AND ARBITRATION PROCEEDING NO. 22 OF 2011 ____________
____________ BETWEEN
____________ Before: Hon Chung J in Chambers Date of Hearing: 17 June 2011 Date of Decision: 17 June 2011 Date of Handing Down Reasons for Decision: 23 June 2011 _________________________________ REASONS FOR DECISION _________________________________ Introduction 1.This reasons for decision concerns the discharge of a prohibition order made on 14 June 2011 against the defendant, a Mainland resident. It was dealt with on the summons day. The brief reasons for the discharge appear below. 2.The plaintiff commenced this action in April 2011. Further, on 26 April, the plaintiff applied for, and was granted ex parte, a worldwide Mareva injunction order against the defendant. Issues in The Discharge Application 3.It was alleged by the plaintiff that, despite the said injunction order, the defendant transferred all of his shares in a company to someone else. Based on that allegation, the plaintiff applied, and on 16 June 2011 was given leave, to commit the defendant for contempt of court. As can be seen from para. 1 above, the prohibition order was granted before such leave was applied for or given. It was accepted the prohibition order was obtained to facilitate the bringing of such committal proceedings (and not other proceedings). 4.One of the reasons put forth in support of this application for the discharge was that there was no jurisdiction to grant the prohibition order. On the other hand, the plaintiff contended that s. 21B(1)(b), High Court Ordinance (Cap. 4) empowers the court to grant such an order before judgment is given or order is made. 5.The plaintiff accepted that it could not satisfy some of the conditions prescribed by s. 21B(3), Cap. 4 for the making of an order under s. 21B(1)(c) (jurisdiction to make a prohibition order in relation to a civil claim) and so could not properly rely on that provision. 6.The relevant parts of s. 21B(1)(b), Cap. 4 provide:-
The parties’ respective case focused on whether the phrase
in that sub-section can cover pre-judgment situations. 7.The plaintiff’s case that it can was premised on a remark made in the court of appeal’s judgment in Bank of India v. Murjani Industries (HK) Ltd. and Another [1989] 2 HKLR 276:-
The plaintiff relied on the presence of the words “securing” and “pursuance” in s. 21B(1)(b), Cap. 4. 8.The court of appeal’s above remark was made in the following factual context. The bank plaintiff sued the defendant as a guarantor. After the discharge of an earlier prohibition order against the defendant, the bank plaintiff applied to another judge for a new order. The plaintiff produced a draft writ and gave an appropriate undertaking when doing so. The court of appeal dismissed the appeal against the making of the new order. Reasons for Deciding This Application 9.In short, the decision to discharge was based on a lack of jurisdiction. 10.Despite the apparent width of the court of appeal’s said remark, its true meaning is shown by a proper understanding of the entire judgment. Having read the judgment, I conclude that it was directed against s. 21B(1)(c) (and not s. 21B(1)(b), as in this application). 11.I so conclude because:-
12.Further, to construe s. 21B(1)(b), Cap. 4 in the manner contended for by the plaintiff would render some of the provisions in s. 21B superfluous and/or inconsistent with each other:-
On the other hand, to construe it in the manner contended for by the defence would make the whole scheme consistent and sensible.
Mr Victor Dawes, instructed by Messrs DLA Piper Hong Kong, for the Plaintiff Mr Charles Manzoni and Mr Wayne Hariman, instructed by Messrs Boughton Peterson Yang Anderson, for the Defendant |