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Hong Jing Co Ltd v Zhuhai Kwok Yuen Investment Co Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date12 April 2013
CourtCourt of Final Appeal (Hong Kong)
Judgement NumberFAMV1/2013
Subject MatterMiscellaneous Proceedings (Civil)
FAMV2/2013 HONG JING CO LTD v. ZHUHAI KWOK YUEN INVESTMENT CO LTD

FAMV Nos 1, 2, 4 and 5 of 2013

FAMV No. 1 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 63 OF 2011)

_____________________

Between:

HONG JING COMPANY LIMITED
(泓景置業發展有限公司)		 Applicant
and
ZHUHAI KWOK YUEN INVESTMENT COMPANY LIMITED
(珠海市國源投資有限公司)		 Respondent

_____________________

FAMV No. 2 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 254 OF 2011)

_____________________

Between:

HONG JING COMPANY LIMITED
(泓景置業發展有限公司)		 Applicant
and
ZHUHAI KWOK YUEN INVESTMENT COMPANY LIMITED
(珠海市國源投資有限公司)		 Respondent

_____________________

FAMV No. 4 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 4 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 63 OF 2011)

_____________________

Between:

HONG JING COMPANY LIMITED
(泓景置業發展有限公司)		 Plaintiff/
Respondent
and
ZHUHAI KWOK YUEN INVESTMENT COMPANY LIMITED
(珠海市國源投資有限公司)		 Defendant/
Applicant

_____________________

FAMV No. 5 of 2013

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO.5 OF 2013 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO.254 OF 2011)

_____________________

Between:

HONG JING COMPANY LIMITED
(泓景置業發展有限公司)		 Plaintiff/
Respondent
and
ZHUHAI KWOK YUEN INVESTMENT COMPANY LIMITED
(珠海市國源投資有限公司)		 Defendant/
Applicant

_____________________

Appeal Committee: Mr Justice Chan PJ, Mr Justice Ribeiro PJ and Mr Justice Tang PJ
Hearing and Decision: 9 April 2013
Handing Down of Reasons: 12 April 2013

_________________________

DETERMINATION

_________________________

Mr Justice Ribeiro PJ:

1. Reserving our reasons, we dismissed the plaintiff’s leave applicant with costs and granted the defendant an extension of time for applying for leave to appeal in respect of one of the questions sought to be raised. These are our reasons.

2. The plaintiff sued the defendant for breach of contract and breach of fiduciary duty in connection with an unsuccessful attempt by the plaintiff to take over certain debts and properties held by the defendant pursuant to an agreement reached between the parties. Those assets were in fact transferred by the defendant to a third party under a subsequent agreement.

3. After trial, Yam J[1] found in favour of the plaintiff but his judgment was set aside and a retrial ordered by the Court of Appeal[2] which held that findings essential to establishing liability had not been made by the Judge. The missing findings were held to be necessary for deciding whether there was a breach and if so, whether there was a causal connection between breach and loss.

4. The plaintiff applied to the Appeal Committee for leave to appeal against the Court of Appeal’s order for a retrial. Mr Denis Chang SC sought to argue that such leave was as of right on the basis that it came within the second limb of section 22(1)(a) of the Court’s statute, it being submitted that the claim was for a proprietary right of the value of the sum referred to in the declaration of constructive trust made by the Judge.

5. We do not accept that submission. The sum in question was claimed on the basis that it represented sums allegedly obtained by the defendant in breach of fiduciary duty which it, as such fiduciary, was obliged to disgorge. It is plainly a personal claim and not one for a particular property or proprietary interest as discussed in WLK v TMC (No 1).[3]

6. It was alternatively submitted that leave should be granted on the “or otherwise” basis, the argument being that the Court of Appeal had erred in suggesting that the Judge had failed to make critical findings (especially in relation to the “double dealing” allegation) and that, in so far as the Judge had failed to make other findings (such as in respect of the issue of causation), the Court of Appeal was wrong not to make such findings itself instead of ordering a retrial. The Appeal Committee was therefore being asked to grant leave on the basis that the Court of Final Appeal should perform the fact-finding task which the Court of Appeal had declined to undertake. We consider such a course wholly inappropriate. The Court of Appeal, for instance, held that the Judge had crucially failed to make findings as to the credibility and weight of the evidence given by the defendant’s witnesses regarding the alleged change of stance by the Bank of China and the consequences for causation, holding, quite understandably, that it was in no position itself to make such findings. It is not the role of the Court of Final Appeal to undertake such a task.

7. For the abovementioned reasons, we dismissed the plaintiff’s leave application with costs.

8. The defendant applied to the Court of Appeal either (i) for an...

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