Smse v Kl

CourtCourt of Appeal (Hong Kong)
Judgment Date15 May 2009
Citation[2009] 4 HKLRD 125
Judgement NumberCACV111/2009
Subject MatterCivil Appeal
CACV000111/2009 SMSE v. KL

CACV 111/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 111 OF 2009

(ON APPEAL FROM HCMC NO. 2 OF 2006)

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BETWEEN
SMSE Appellant
and
KL Respondent

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Before: Hon Le Pichon JA and Poon J in Court

Date of Hearing: 13 May 2009

Date of Judgment: 13 May 2009

Date of Handing Down Reasons for Judgment: 15 May 2009

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1. This was the adjourned hearing of a renewed application by the applicant for a stay of orders made by Hartmann JA (sitting as an additional judge of the Court of First Instance) on 9 and 30 April 2009 (“the orders”). By the orders, the judge dismissed the applicant’s summons to set aside a subpoena duces tecum served on him by the respondent (“the husband”) in matrimonial proceedings for ancillary relief between the petitioner (“the wife”) and the husband and ordering that there be production by the applicant pursuant to the subpoena of the documents identified in the judge’s ex tempore ruling of 30 April 2009.

2. The renewed stay application to this court was made in the context of the following circumstances. At the hearing on 30 April 2009, the judge granted the applicant leave to appeal the orders but refused a stay pending appeal because of “time constraints”, that being a clear reference to the fact that the trial for ancillary relief has been fixed to commence on 1 June 2009. The applicant, being a non-party to those proceedings, had played no part in the fixing of the trial dates.

3. At the conclusion of the hearing, this court granted a stay pending appeal for reasons to be handed down which we now do.

Background

4. The ancillary proceedings are between the wife and husband.

5. The applicant is the wife’s brother and a director of the principal company (“the Company”) in a group of companies owned by the wife’s family engaged in the business of manufacturing leather goods. The business was founded by the wife’s father in the 1970s and specialises in the manufacture of handbags.

6. The applicant was served in his capacity as a representative of the Company and also in his personal capacity as the person authorised to produce the documents of the Company specified in the subpoena. Neither the applicant nor the Company is a party in the ancillary relief proceedings.

7. In outline, the applicant and the Company’s involvement in the ancillary relief proceedings was not of their own volition but arose from the following circumstances.

8. The wife (who and whose family are from Hong Kong) met the husband who is a US citizen in the United States. They married there in 1987 and came to live in Hong Kong in 1988 when they joined the family business which, at the time, was a sole proprietorship. At the end of 1990, the Company was incorporated to take over the family business. The Company remained...

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