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HCMP 1306/2017

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[2018] HKCFI 1795 B

C IN THE HIGH COURT OF THE C

HONG KONG SPECIAL ADMINISTRATIVE REGION


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COURT OF FIRST INSTANCE

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MISCELLANEOUS PROCEEDINGS NO 1306 OF 2017 E
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IN THE MATTER of Order 32, rule 10

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of the Rules of the High Court, Cap 4A G
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H BETWEEN H

I MORAL LUCK FINANCE LIMITED Plaintiff I


(德裕財務有限公司) (Respondent)
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and
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LAW KIN LEUNG (羅健良) Defendant


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and
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CHEUNG KWAI YIN Applicant


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Before: Deputy High Court Judge Keith Yeung SC in Chambers


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Date of Hearing: 20 July 2018
Q Date of Decision: 20 July 2018 Q

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DECISION
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1. On 13 July 2018, the applicant obtained from Wong J on an
B ex parte basis a Mareva injunction against the plaintiff. This is the return B

date hearing.
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D 2. Background of the matter can be gleaned from the judgments D

of the Court of Final Appeal in FACV 5 and 6 of 2015. In gist, the


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plaintiff was a licensed money lender and lent the defendant $30,000.
F As he defaulted in making repayments, it obtained a judgment against him, F

a charging order on his flat and an order for vacant possession and sale, all
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in default of acknowledgement of service by the defendant. The applicant,
H the defendant’s wife, approached the court contending that the defendant was H

mentally incapacitated and sought orders that she be appointed his guardian
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ad litem and that the judgment and consequential orders be set aside. Her
J application was objected to by the plaintiff and rejected by Deputy District J

Judge R Yu (as he then was) before District Court. Her appeal to the
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Court of Appeal was dismissed. She appealed to the Court of Final Appeal.
L On 24 June 2015, her appeal was allowed. She was also awarded costs. L

According to the relevant Bill of Costs prepared prior to taxation, the total
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amount of costs which she was entitled to claim from the plaintiff was
N HK$3,359,928. N

O 3. The applicant proceeded to have her costs taxed. The plaintiff O

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had been mostly unresponsive in the process. There had also been certain P
developments which caused the applicant concern. They included the
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following: (1) according to the List of Dismissed or Withdrawn Applications

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for Money Lenders (as at 30 April 2017), the plaintiff’s application for money R
lender licence was dismissed; (2) some unusual changes of shareholding and
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directorship of the plaintiff; and (3) that the plaintiff could not be found at

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its registered address when a clerk of the applicant’s legal advisers attended T
the same on 2 June 2017.
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4. On 6 June 2017, and supported by the applicant’s 1 affirmation
B of the same date, the Applicant obtained from Lisa Wong J on an ex parte B

basis a Mareva injunction against the plaintiff prohibiting its disposal of


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assets up to HK$3 million. Disclosure in aid was also ordered. Despite
D the appearance at some stage (during the first return date on 16 June 2017) D

by someone claiming to have been authorized to represent the plaintiff, the


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plaintiff failed to arrange properly its representation before the court. The
F plaintiff ultimately filed no evidence in opposition. In the end, the Mareva F

injunction was ordered to be continued by Au Yeung J on 23 June 2017 until


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28 days after completion of the taxation proceedings in FACV 5 and 6 of
H 2015 (the “23/6/17 Mareva Injunction”). H

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5. The plaintiff failed to give any disclosure in aid as ordered.
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6. The taxation hearings subsequently took place on 30 June 2017,


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7 August 2017, 23 October 2017 and 17 January 2018. During the first
L hearing, somebody (called 余磊) who claimed to be a director of the plaintiff L

appeared. He said that he had no intention of settling the outstanding costs.


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The taxation hearing was then adjourned, as proper application would have
N to be taken out by the purported director to get leave to represent the plaintiff. N

The plaintiff however did not appear during the subsequent hearings.
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P 7. The sealed Order of the allocatur was issued on 20 April 2018. P

The total amount of costs allowed is HK$2,967,105.60. As per the Order


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of Au-Yeung J, the 23/6/17 Mareva Injunction lapsed on 18 May 2018.
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8. On 13 July 2018, with her 2nd affirmation of 10 July 2018 in


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support, the applicant applied for and obtained before Wong J what is in
T effect a re-grant of the 23/6/17 Mareva Injunction (the “13-7-18 Mareva T

Injunction”). The ceiling of the restrained amount was, in accordance


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with the amount of the costs allowed, adjusted to HK$2,967,105.60. I note
B that on 7 June 2018, the applicant applied for Legal Aid. That accounts B

for the slight delay in the making of the application before Wong J.
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D 9. I have read the 2nd affirmation of the applicant. I have read D

the authorities cited to me, which include Menno Leendert Vos v Global
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Fair Industrial Ltd & others HCA 4200/1995 (unreported, 25 March 2010).
F I have heard counsel for the applicant. I note that this is in effect an F

application for a post-judgment Mareva injunction. The existence of a


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good arguable case is not in doubt. Given the circumstances of the case
H and the conduct of the plaintiff as outlined above, including the failure on H

the part of the plaintiff to make disclosure in aid as ordered by the 23/6/17
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Mareva Injunction, and in the absence of any evidence in opposition from
J the plaintiff, a serious risk of dissipation can in my view be inferred. The J

balance of convenience is also in favour of the continuation of the 13-7-18


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Mareva Injunction. However, whilst I am prepared to continue the 13-7-18
L Mareva Injunction pending initiation of execution process, I am not prepared L

to order it to be continued indefinitely. In my view, it is not appropriate to


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do so — see Republic of Haiti v Duvalier [1990] 1 QB 202, per Staughton LJ
N at 214G–H. While the applicant will need some protection in terms of N

the 13-7-18 Mareva Injunction at this stage, she should avail herself of the
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usual execution mechanism in due course. I will proceed to hear Mr Ma
P on the duration. P

Q (Discussion with counsel) Q

R 10. The Injunction granted by Wong J on 17 July 2018 be continued R

until 16 July 2019 unless before then it is varied or discharged by a court


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order, with costs reserved.
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U (Keith Yeung SC) U


Deputy High Court Judge
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Mr Billy N P Ma, instructed by Ha & Ho, for the applicant
B The plaintiff / respondent was not represented and did not appear B

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