Ming Hsieh v. Xu Zhe and Others

HCMP 3072/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 3072 OF 2014

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DECISION

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1.This is an application for leave to appeal, and it is not the occasion for this Court to add to the reasons for its Decision, or to clarify or elaborate on the reasons.

2.The orders I made on 10 April 2015, discharging the ex parte injunction order of 21 November 2014, and granting a new injunction order against the 1^st, 2^nd and 4^th defendants, are orders made on the exercise of the court’s discretion. 

3.In an appeal against an exercise of a judge’s discretion, the authorities are clear that the ambit of the appellate court’s interference is restricted.  The Court of Appeal will not intervene unless the appellant can show that the judge had misdirected himself with regard to the legal principles in accordance with which his discretion had to be exercised, or had misapprehended material facts, or had taken into account irrelevant matters or failed to take relevant matters into account, such that the judge’s conclusion was plainly wrong, and “outside the generous ambit within which reasonable disagreement is possible”.

4.Having heard Counsel on the proposed grounds of appeal, I am not satisfied that I had exercised my discretion under wrong principles of law.  The relevant legal principles applied are those set out in paragraph 51 of the Decision, following the Court of Appeal’s decision in Excel Courage Holdings Limited v Wong Sin Lai [2014] 3 HKLRD 642.  Whether to continue or regrant the injunction order is within the court’s discretion, and there is no general or hard fast rule that an innocent breach of the duty of full and frank disclosure will not attract the sanction of discharge of the order, or that a deliberate breach will attract such sanction.  The court takes into account all relevant circumstances, and gives regard to the penal nature of the jurisdiction and the proportionality between the punishment and the offence. 

5.The factors taken into consideration in the exercise of my discretion to re-grant the injunction order after the discharge have all been set out in my Decision, and I am not persuaded that they are irrelevant, or that any relevant matter had not been taken into account.

6.As to whether there is a good arguable case, all that the plaintiff has to establish is that there is a good arguable case that the foreign proceedings are capable of giving rise to a judgment which may be enforced in Hong Kong. As to the effect of the US Judgment, whether or not the facts supporting the different causes of action in the US action are the same, it is clear that the only cause considered by the US court was the implied contract claim.  For the reasons already set out in the independent decision I reached on the facts and evidence, I was not satisfied that the plaintiff has no good arguable case, or that it is unjust or inconvenient to continue the injunction.  Nor am I satisfied that there are reasonable prospects of success on these grounds of appeal.

7.Leave to appeal is accordingly refused, with costs to the plaintiff.

Ms Rachel Lam, instructed by Gall, for the plaintiff

Mr Paul Shieh SC and Mr James Man, instructed by DLA Piper Hong Kong, for the 1^st to 4^th defendants