Parkside’s Jacquelyn Ng appeared for the Respondents in深圳市深超科技投資有限公司 v 世紀晶源科技有限公司 & Anor [2025] HKCA 551 (led by Mr Andrew Liao SC, instructed by Wellington Legal). The appeal was dismissed and the Respondents successfully obtained indemnity costs for the manner in which the Applicant conducted the appeal.
The Applicant took out the present appeal against the Hon Anthony Chan J’s decision of 23 June 2020 (the “Refusal of Leave Decision”), refusing leave to appeal against his earlier decision setting aside the order allowing the Applicant to enforce a Mainland arbitral award in Hong Kong (the “Set Aside Decision”). Initially, the sole ground of appeal was that the Refusal of Leave Decision was “not reached by any intellectual process and/or not by proper or fair process, and/or there was fundamental error of law …”. The applicant later filed an amended supplementary notice of appeal adding four grounds (the “Impugned Grounds”). These were struck out on the Respondents’ application, pursuant to the Court’s earlier judgment dated 20 July 2023 (the “S/O Judgment”).
The Court found that the Applicant had failed to advance any substantive argument in support of the remaining ground of appeal. Instead, the written submissions attempted to re-run the Impugned Grounds which was impermissible and without merit.
The Court nevertheless dealt with the ground of appeal, which wording closely tracked the dicta of Mustill LJ in Aden Refinery Ltd v Ugland Ltd [1987] 1 QB 650 at 666B concerning the Court’s residual jurisdiction to supervise the leave to appeal process at first instance. It raises a serious allegation of lack of fair processing in the leave to appeal process, which allegation the Court found wholly unsubstantiated.
Neither was any alleged “fundamental error of law” found. The Court added that in invoking its residual jurisdiction, a clear distinction is drawn between a challenge to the merits of the decision and fairness of procedure. The Court of Appeal will only intervene where there is such a substantial defect in the fairness of the process as to invalidate the decision.
The Applicant also tried to argue that the Court of First Instance had no jurisdiction to make the Set Aside Decision, and that the Applicant was entitled to raise this for the first time in the substantive appeal as it was a “jurisdictional issue”. These contentions were firmly rejected. The Court held that the “jurisdictional issue” was simply a variation of the Applicant’s failed argument on statutory construction and it was an abuse of process to re-argue the same after had been considered substantively and rejected in the Refusal of Leave Decision and in the S/O Judgment.
This case serves as an emphatic reminder of the proper manner in conduct of appeals. In particular, practitioners should not:
The full judgment can be accessed here.
Jacquelyn also appeared for the Respondent in the previous striking out application (led by Mr Andrew Liao SC). The S/O judgment can be accessed here.
