IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 185 OF 2011
(ON APPEAL FROM HCMP NO. 749 OF 2011)
Before: Hon Fok JA in Chambers
Date of Hearing: 28 September 2011
Date of Judgment: 28 September 2011
J U D G M E N T
1. On 16 September 2011, Barma J acceded to an application by the plaintiff, Mr Tsai, for an order that he be entitled to inspect variousclasses of documents of the 1st defendant, Asia Television Limited, of which he is a director. Pursuant to an application made immediately following the pronouncementof his decision, Barma J granted an interim stay of execution of his inspection order so that the order would not come into effectuntil 30 September 2011.
2. The 2nd defendant, Mr Shing, the executive director of ATV, being dissatisfied with the order for inspection has instituted an appeal tothis court, the appeal being brought as of right. Since the notice of appeal was only issued on 23 September 2011, no date has yetbeen fixed for the hearing of the appeal.
3. The summons before me today is an application by Mr Shing as appellant for a stay of execution of the order for inspection pendingthe determination of this appeal.
4. This appeal is but one part of a wider and protracted dispute between rival shareholders seeking to secure control over ATV. Thebackground to that has been dealt with in the judgment of Barma J dated 30 April 2010 in HCA 317 of 2010. Part of the ongoing litigationincludes HCA 773 of 2010 in which Mr Tsai’s father, Tsai Eng-Meng, is suing to protect his rights under a letter of intent dated7 April 2009.
5. It is, of course, trite that an appeal does not operate as a stay of execution. Thus, unless the party appealing can justify astay of execution, one will not be granted.
6. In the present case, Mr Anson Wong, counsel for Mr Shing, submitted that a stay pending appeal should be granted since there arestrong grounds of appeal. His fallback argument was that, even if the court were not convinced of the strength of the grounds ofappeal, a stay of execution should be granted in view of the fact that the appeal is at least arguable and would be rendered nugatoryif no stay were granted.
7. Although he has yet to hand down his written reasons for his decision, Barma J stated his reasons briefly and a transcript of thosereasons has been included in the bundles for this hearing.
8. The grounds of appeal in the Notice of Appeal that has now been filed replicate, in summary, the same three grounds argued beforethe Judge below in opposition to the inspection order, namely:
9. This application is, of course, not the hearing of the appeal but I am nevertheless required to reach a preliminary view of themerits or strength of the appeal.
10. I have considered each of the grounds of appeal carefully. I am not persuaded that they give rise to a strong appeal or a stronglikelihood that the appeal will succeed. If they did, that would on its own be sufficient to justify the grant of a stay of execution.
11. As to the question of whether the grounds of appeal disclose an arguable appeal, being an appeal with a reasonable prospect of success,the question is whether the intended appeal enjoys a real, or a sensible, as opposed to fanciful, prospect of success.
12. For my part, I have some reservations as to whether the grounds of appeal do disclose an arguable appeal. On the other hand, despitethe able submissions of Mr Manzoni, counsel for Mr Tsai, I am not persuaded at this stage that the grounds for resisting the inspectionorder are, as he described them, “hopeless”. However, since these will need to be addressed by the Court of Appeal when it hearsthe appeal itself, I do not propose to say any more about the merits of the respective arguments for and against the appeal at thisstage. It is sufficient for me to say that I am prepared to accept, as the Judge apparently did below when he granted the interimstay, that the argument that the use of the documents for an improper purpose should result in some restriction being placed on theinspection gives rise to an arguable ground of appeal.
13. What is of concern at this stage is the fact that the refusal of a stay may render the appeal nugatory, yet against this, the grantof a stay will deprive Mr Tsai of the fruits of his success before the Judge.
14. The refusal of a stay would render the appeal nugatory if the appeal, if successful, results in the setting aside of the order forinspection. However, the notice of appeal is not limited to seeking the setting aside of the order and the alternative order soughtis limited to imposing a condition on the inspection by Mr Tsai.
15. In the circumstances, whilst I am not inclined to grant a stay in general terms, it seems to me there is merit in the half-way houseproposed by Mr Wong, namely that, pending the determination of the appeal, Mr Tsai’s inspection of the documents in question shouldbe subject to the condition “that all documents and materials obtained shall not be disclosed or used by P [i.e. Mr Tsai] otherwisethan for the purpose of discharging his duties owed to ATV as its director”.
16. Mr Manzoni submitted this condition would be unworkable but I do not think the practical difficulties are insuperable. Mr Tsaiwill be able to inspect the documents in order to discharge his duties as a director of ATV acting in its best interests. Insofaras he were to pass documents to Antenna Investment Limited (which is the shareholder of ATV whose interests Mr Tsai represents onthe board), which Mr Wong appeared to accept would be permissible, the further use to which Antenna might put the documents wouldnot, in the absence of evidence showing the contrary, be a matter for which Mr Tsai would be responsible. Pending the determinationof the appeal in the meantime, Mr Tsai will be subject to a condition which may or may not ultimately be confirmed by the Court ofAppeal as one under which his access to the documents should be subject.
17. I therefore grant an order in terms of paragraph 2 of Mr Shing’s summons (save for the words “or such other conditions as thisCourt may think fit”). The costs will be in the cause of the appeal.
Mr Charles Manzoni, instructed by Messrs Michael Li & Co., for the Plaintiff/Respondent
Mr Anson Wong, instructed by Messrs So Keung Yip & Sin, for the 2nd Defendant/Appellant
The 1st Defendant in person (absent)
The 4th Defendant in person (absent)