Wingames Investments Ltd and Another v. Mascot Land Ltd and Others

HCA 907/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 907 OF 2011

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BETWEEN

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Before : Deputy High Court Judge Pow, SC in Chambers

Date of Hearing : 10 September 2012

Date of Decision : 10 September 2012

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D E C I S I O N

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1.This is an application on the part of the plaintiff for leave to appeal against my order that it should provide security for costs in the sum of HK$2.4 million within 28 days failing which the proceedings shall be stayed. The threshold test for the grant of leave is well established. Plaintiff has to demonstrate a reasonable prospect of success in relation to its proposed grounds of appeal.

2.The first ground of appeal relates to a challenge to my exercise of discretion in refusing leave for plaintiff to file the 7^th Affirmation at the hearing.  It is trite law that the Court of Appeal is reluctant to interfere with a judge's exercise of discretion unless there is an error of law or a misapprehension of material facts, errors in matters taken or not taken into account, or that the exercise of discretion was plainly wrong.  The contents of the 7^th Affirmation was already considered by me de bene esse at the hearing.  I also expressed in my judgment that I had serious doubt as to the genuineness of the email exchanges for reasons set out in my Judgment given the circumstances under which it came about as well as the incredulousness of its contents. I am not persuaded that there is reasonable prospect of the Court of Appeal interfering with my exercise of discretion.  I add further that the 8^th Affirmation of Li clearly fails to satisfy the Ladd v Marshall test.  Mr Li stated that it was a deliberate decision not to mention his discussions with shareholders on funding in his 6^th Affirmation for which he is now lamenting.

3.The second ground relates to my finding on the place of central management and control of Plaintiff.  The ground of appeal does not set out the ways in which I am said to have erred in law or in fact.  It amounts to a general statement that my decision was wrong and provides no real clue as to why and how.  I am not persuaded that there is reasonable prospect of the Court of Appeal overturning my finding in this aspect.

4.The third ground suggested that I wrongly exercised my discretion but again, without specifying why and how save as to mention the HK$44 million deposit held by defendant as a specific factor.  I have also dealt with this issue in my judgment and there is no specific suggestion as to how I erred.  This is again a challenge to the exercise of my discretion which I am not persuaded that the Plaintiff has a reasonable prospect of success at the Court of Appeal.

5.In the circumstances, this application is refused.

Ms Stephanie Hung, of King & Wood Mallesons, for 1^st to 3^rd Plaintiffs

Mr David Chu, of Dechert, for 1^st to 6^th Defendants

Please refer to CACV63/2012 for the relevant appeal(s) to the Court of Appeal.