Hong Kong Case Law: Decisions & Judgments

Topic

Protective writs

Legal area

Court

27 Oct 2020

ALLIED WELI DEVELOPMENT LTD AND ANOTHER v. CHUANG YUE CHIEN, EUGENE AND OTHERS

Citation

[2020] HKCFI 2746
Court

Court of First Instance
Case number

HCA57/2018

The court dismissed the 1st defendant's summons and the plaintiffs' cross‑summons. The ex parte extension orders were justified on the facts: there were good reasons for the extensions given the substantial obstruction, the need to reconstitute the company's knowledge and the ongoing section 286B investigation producing large document volumes; there was no material non-disclosure and the plaintiffs had adequately drawn attention to limitation issues; the indorsement was permissibly broad; the court had jurisdiction to hear the challenge under O 32 r 6.
22 Sept 2020

CHINA MEDICAL TECHNOLOGIES, INC. (IN LIQUIDATION) v. BANK OF CHINA (HONG KONG) LTD

Citation

[2020] HKCFA 28
Court

Court of Final Appeal
Case number

FAMV239/2019

Leave to appeal was refused because the courts below correctly found material non-disclosure and misrepresentation in the ex parte affidavit that vitiated the master’s extension order, service of the writ did not comply with s.827 Companies Ordinance, and there was no reasonably arguable basis that the Court of Final Appeal would overturn the discretionary decisions or exercise the discretion differently even if an arguable error on the ‘good reason’ issue were shown.
23 Mar 2018

CHINA MEDICAL TECHNOLOGIES, INC. (in liquidation) v. KPMG (a firm)

Citation

[2018] HKCFI 655
Court

Court of First Instance
Case number

HCA2276/2016

The defendant seeking early service under Order 12 rule 8A bears the burden of proving that it would be unjust to allow the protective writs to run their natural expiry; that threshold is high and was not met because (1) service is not necessary to obtain letters of request, (2) the Mutual Arrangement is unlikely to produce the full scope of documents or meet the Liquidators’ investigatory purposes, (3) KPMG failed to show a good prospect of obtaining and enforcing letters of request, and (4) KPMG substantially caused delay by obstructing compliance with section 221 orders; accordingly the ap…
23 Mar 2018

CHINA MEDICAL TECHNOLOGIES, INC. (in liquidation) v. KPMG (a firm)

Citation

[2018] HKCFI 655
Court

Court of First Instance
Case number

HCA1138/2014

KPMG failed to discharge the heavy burden under Order 12 r8A of proving it would be unjust to allow the protective writs to remain valid until expiry; the MOF opinion did not establish that a letter of request was necessary or that voluntary production was unlawful; the Mutual Arrangement was unlikely to achieve the broader investigatory aims of the section 221 orders; KPMG largely caused the delay by non-compliance with section 221 orders, so its application was dismissed with costs to the plaintiff.
23 Mar 2018

CHINA MEDICAL TECHNOLOGIES, INC. (in liquidation) v. KPMG (a firm)

Citation

[2018] HKCFI 655
Court

Court of First Instance
Case number

HCA1822/2013

KPMG failed to discharge the high burden under Order 12 r 8A to show it would be unjust to allow the protective writs to run their natural course: service is not necessary to obtain letters of request, the MOF opinion did not establish that voluntary production is unlawful, the Mutual Arrangement is uncertain and inadequate for the Liquidators' broader investigatory purposes under the section 221 orders, and the delay was substantially caused by KPMG's obstructive conduct; accordingly the application to force service is dismissed.
8 Aug 2017

CHINA MEDICAL TECHNOLOGIES, INC. (IN OFFICIAL LIQUATION) v. KPMG (A FIRM)

Citation

CHINA MEDICAL TECHNOLOGIES, INC. (IN OFFICIAL LIQUATION) v. KPMG (A FIRM)
Court

Court of First Instance
Case number

HCA1822/2013

The court found that the liquidators demonstrated good reason to extend the protective writs because they had genuine investigative difficulties, partly attributable to KPMG's failure to provide or produce documents, and that the balance of hardship favored extension because prejudice to KPMG was minimal while prejudice to the insolvent company would be grave; accordingly the court exercised its discretion to extend the writs to 19 June 2018.
8 Aug 2017

CHINA MEDICAL TECHNOLOGIES, INC. (in liquidation) v. KPMG (a firm)

Citation

CHINA MEDICAL TECHNOLOGIES, INC. (in liquidation) v. KPMG (a firm)
Court

Court of First Instance
Case number

HCA2276/2016

The court accepted the liquidators' evidence that they had genuine difficulty investigating the claims due to missing documents and that KPMG's conduct contributed to delay; the balance of hardship favoured extension because prejudice to KPMG was likely minimal whereas denial would cause grave prejudice to CMED; accordingly the court exercised its discretion to extend the validity of the three protective writs to 19 June 2018 while warning further extensions will be closely scrutinised.
9 Oct 2013

GRANDE HOLDINGS LTD v. CHRISTOPHER HO WING ON

Citation

GRANDE HOLDINGS LTD v. CHRISTOPHER HO WING ON
Court

Court of First Instance
Case number

HCA565/2013

The summons under O.12 r.8A was dismissed because the defendants failed to discharge the burden to show that dismissal or directions were justified: the plaintiffs, as provisional liquidators, provided a genuine, detailed explanation for withholding service (protective writ to preserve limitation and ongoing complex investigations in the interests of creditors) and the prejudice alleged by defendants was speculative and not imminent; court objectives favour fairness and efficient use of resources, and directing service would likely be counter-productive in the circumstances.
4 Nov 2005

RE KONG WAH HOLDINGS LTD (In Liquidation)

Citation

RE KONG WAH HOLDINGS LTD (In Liquidation)
Court

Court of First Instance
Case number

HCCW49/2000

The court held that Order 63 rule 4(1) does not confer an absolute right of access to originating processes and that the court's inherent jurisdiction can be invoked to restrict access where necessary to protect the effectiveness of protective writs; accordingly the court exercised its discretion to grant the confidentiality and sealing directions sought in respect of the four protective writs.
4 Nov 2005

RE AKAI HOLDINGS LTD (In Liquidation)

Citation

RE AKAI HOLDINGS LTD (In Liquidation)
Court

Court of First Instance
Case number

HCCW50/2000

The right of access to an originating process under Order 63 r.4(1) is not absolute; the court may, in an appropriate case, invoke its inherent jurisdiction to restrict access and to grant confidentiality/sealing directions. Applying that principle, the court exercised its discretion to grant the liquidators' ex-parte relief to issue four protective writs and to impose the confidentiality and sealing directions sought to preserve the effectiveness of the orders.