Beyonics Technology Limited and Another v. Goh Chan Peng and Others

HCMP 1840/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1840 OF 2013

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D E C I S I O N

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1.This is the defendants’ applications:

(a) for leave to appeal against the decision handed down on 12 November 2014 (“the challenged decision”);

(b) for stay of execution of the part of the challenged decision for the disclosure of bank records of the defendants’ bank accounts in Hong Kong.

2.The challenged decision consists of two parts: the continuation of a Mareva injunction in aid of the plaintiffs’ Singapore action; the disclosure of the bank records referred to in para 1(b) above.

3.The background leading to the applications which resulted in the challenged decision has been briefly stated in the challenged decision and will not be repeated.

4.In relation to the application for leave to appeal, the main ground put forth is that I have “mistreated” the nature of the Singapore order.  This ground suffers from two inter-related shortcomings:

(1) it overlooks the conclusion that the Singapore order “could well have been the result of the parties’ out-of-court discussion instead of a considered determination after full argument” (para 12, the challenged decision).  There was in fact no conclusion that the Singapore order was the result of out-of-court discussion.  In other words, the conclusion merely pertains to a possibility, not a certainty.  Such a possibility gives risk to the question of the weight to be attached to the Singapore order, which was also dealt with in the challenged decision (para 13 thereof);

(2) the conclusion referred to in sub-para (1) above was based on (a) the apparent brevity of the hearing; and (b) the passages quoted in the challenged decision in support (the defendants’ skeleton arguments for the application completely fail to address the quoted passages).

5.The complaint that I overlooked that the Hong Kong ex parte injunction was granted on a “back-to-back” basis is, with respect, wrong.  It was mentioned in the challenged decision although in different language (para 5 thereof).

6.In relation to the discovery application, para 13 to 15 of the defendants’ skeleton arguments are premised on the Hong Kong ex parte injunction having been discharged.  As a matter of fact, it was continued by the challenged decision. 

7.Para 16 to 19 of the defendants’ skeleton arguments are a rehearsal of the arguments earlier put forth in the hearing leading to the challenged decision.  For the same reasons given earlier, I disagree with them.

8.All in all, I do not consider the defendants to have shown a reasonable prospect of success in the intended appeal.

9.The application for leave to appeal is therefore refused.

10.As regards the defendants’ application for stay of execution, as I have already concluded that the defendants’ application for leave to appeal does not show a reasonable prospect of success in the intended appeal, their application for stay of execution ought to be dismissed as well but for the fact that, as Mr Cheuk for the defendants contends, this may result in the intended appeal being rendered nugatory.  

11.Balancing the parties’ interest with the last mentioned matter in mind, my discretion ought to be exercised in granting to the defendants an interim stay of 7 days for the purpose of enabling them to make whatever the application(s) they consider appropriate in relation to an intended appeal (if so advised). 

[Costs of the applications were dealt with subsequently]

Mr Andrew Hart of Hart Giles, for the plaintiffs

Mr Calvin Cheuk, instructed by Deacons, for the 1^st, 3^rd and 4^th defendants