Hui Yin Sang and Others v. Tsoi Ping Kwan and Others
Read the full judgment text of CACV 208/2011 on BabelCite. This Court of Appeal judgment was delivered on 12 October 2012 before Kwan JA, Fok JA, Bharwaney J.
Civil procedure – leave to appeal to Court of Final Appeal – security for costs – ordinary residence of non-trading company under RHC O.23 r.1(1)(a) – central management and control test – application of s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) – interlocutory appeal on procedural issue – whether proposed questions are of great general or public importance, or otherwise – whether purpose of offshore investment holding vehicle should weigh in ordinary residence determination – whether weight should attach to Lindsay J's second proposition in Re Little Olympian Each Ways Ltd – whether s. 905 of the new Companies Ordinance (Ord. No. 28 of 2012) addresses the perceived anomaly – whether leave should be granted on 'or otherwise' ground – application dismissed – none of the three proposed questions reasonably arguable – interlocutory appeals to CFA on procedural issues rare and exceptional – CSAV Group (Hong Kong) Ltd v Jamshed Safdar applied – Re Little Olympian Each Ways Ltd and Chao Keh Lung v Don Xia considered – underlying action is a derivative action by shareholders of New Land Holdings Limited and on behalf of Catford Development Limited – defendants' appeal below already dismissed by Court of Appeal on 19 April 2012.
Legal issues: Whether leave to appeal to the Court of Final Appeal should be granted on the proposed questions regarding security for costs against an offshore non-trading company
Outcome: Application for leave to appeal to the Court of Final Appeal dismissed
Cited by 3 cases · Cites 2 cases
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CACV 208/2011 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 208 OF 2011 (ON APPEAL FROM HCA NO. 392 OF 2008) ________________________ BETWEEN
Before: Hon Kwan, Fok JJA and Bharwaney J in Court Date of Hearing: 12 October 2012 Date of Judgment: 12 October 2012 ________________________ J U D G M E N T ________________________ Hon Fok JA (giving the Judgment of the Court): 1.The 1st and 2nd defendants seek leave to appeal against the judgment of this Court dated 19 April 2012 dismissing their appeal against the Decision of the Judge below refusing their application for security for costs against the 3rd and 4th plaintiffs. 2.The application is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the grounds that the questions involved in the appeal are ones which, by reason of their great general or public importance or otherwise, ought to be submitted to the Court of Final Appeal for decision. 3.As a preliminary observation, the intended appeal is an interlocutory appeal and it is therefore important to keep in mind the observation of the Appeal Committee in CSAV Group (Hong Kong) Ltd v Jamshed Safdar (2007) 10 HKCFAR 629 that interlocutory appeals to the Court of Final Appeal on procedural issues are rare and exceptional. 4.The notice of motion dated 14 May 2012 identifies three proposed questions of great general or public importance. 5.Question 1 poses a question as to the approach for determining ordinary residence of a non-trading company for the purposes of RHC O.23 r.1(1)(a) but it is not in dispute (and was not in issue either in the appeal or before the Judge below) that the applicable test is the test of central management and control. 6.For the reasons given in paragraphs 40 to 44 of our Judgment, we do not think the purpose of an offshore investment holding vehicle is a matter of unique significance which should take precedence over other factors for the purpose of determining whether the company is ordinarily resident in Hong Kong within O.23 r.1(1)(a) and, for those reasons, we do not think Question 2 is reasonably arguable. 7.Similarly, for the reasons given in paragraphs 45 to 47 of our Judgment, we do not think the proposition underlying Question 3, namely that the Court should give weight to the factors identified in Lindsay J’s second proposition in Re Little Olympian Each Ways Ltd [1995] 1 WLR 560 depending on whether they accorded with the underlying purpose of O.23, is reasonably arguable. 8.It is also relevant, in the context of the suggested great general and public importance of Questions 2 and 3, to bear in mind that the perceived anomaly identified in paragraph 50 of our Judgment has now been addressed by s. 905 of the new Companies Ordinance (Ord. No. 28 of 2012), gazetted on 10 August 2012. Upon its coming into effect, that provision will enable a defendant to seek security for costs from a company incorporated outside Hong Kong, even if under the central management and control test it would be regarded as resident in Hong Kong. 9.Insofar as the application is made on the “or otherwise” ground, it is well-established that the grant of leave on this ground is an exceptional course: see, e.g. Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 at §9. Save in rare cases, it will generally be a matter for the Appeal Committee to determine if leave should be given on this ground. 10.For these reasons, we dismiss the application.
Mr Charles T C Wong and Ms Christine Leung, instructed by Wilson Yeung & Co., for the 3rd & 4th Plaintiffs/Respondents Mr Johnny Mok SC and Mr Anson Wong, instructed by Yuen & Partners, for the 1st & 2nd Defendants/Applicants |
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