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B B
HCA 189/2025
C [2025] HKCFI 1295 C
D IN THE HIGH COURT OF THE D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E E
COURT OF FIRST INSTANCE
F ACTION NO. 189 OF 2025 F
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G G
BETWEEN
H H
BEIJING RENJI REAL ESTATE DEVELOPMENT Plaintiff
I GROUP CO., LTD (北京人济房地产开发集团有限公司) I
and
J J
ZHU MIN (朱敏) Defendant
K _________________ K
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Before: Hon Ng J in Chambers
M Date of Hearing: 7 February 2025 M
Date of Reasons for Decision: 28 March 2025
N N
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O O
REASONS FOR DECISION
P _________________________________ P
Introduction
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1. By Summons dated 4 February 2025 (“Summons”) and served
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on the same day, the Plaintiff applied for (i) in para 1, by reference to the
S draft Order in Annex 1 of the Summons, the appointment of receivers over S
the Defendant’s 10,000 shares in Cybernaut International Ltd (“Cybernaut
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HK”) with extensive powers given to the receivers set out in Schedule 3 of
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Annex 1 and (ii) in para 2, “interim-interim” relief pending the
C determination of para 1. The Summons was only set down as a 30-minute C
hearing.
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2. In support of the Summons, the Plaintiff’s solicitors have
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submitted over 70 pages of Court Documents, over 90 pages of affirmations
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and draft affirmations and over 700 pages of exhibits. Mr Lai himself has
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submitted 40 pages of skeleton submissions plus 23 items of authorities. G
H 3. At para 2 of Mr Lai’s skeleton, as confirmed by him at the H
beginning of the hearing on 7 February 2025, he indicated he only sought
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“interim-interim” relief at that hearing but in the same terms as the draft
J Order in Annex 1 of the Summons. J
K 4. After hearing the parties for an hour, this court dismissed the K
application for “interim-interim” relief. Here are the reasons for the
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dismissal.
M M
Background
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5. On 16 January 2020, the Plaintiff obtained an ex parte post-
O judgment Mareva injunction (“Injunction”) against the Defendant in aid of O
the enforcement of a judgment (“Mainland Judgment”) dated
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13 August 2019 granted by the Higher People’s Court of Beijing
Q Municipality ordering the Defendant to pay the sum of RMB 201,769,932 Q
to the Plaintiff.
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S
6. The Injunction was granted by DHCJ Dawes SC on S
16 January 2020. It prohibited the disposal of the Defendant’s assets,
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whether in his own name or not, which are in Hong Kong up to the value of
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RMB 201,769,932 including inter alia his direct and/or indirect U
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shareholding in Cybernaut HK 1 and Cybernaut International Holdings
C Company Ltd (“ListCo”).2 C
D 7. The Injunction was subsequently continued on 24 January 2020 D
by Marlene Ng J in HCMP 83 of 2020, an action commenced by the Plaintiff
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seeking to continue the Injunction. The Injuction was then further continued
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by G Lam JA on 7 April 2022. It remains in force up to the hearing.
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8. The event which prompted the Plaintiff’s Summons was that,
H on 13 September 2024, the Defendant transferred 356 million shares in the H
ListCo (“ListCo Shares”) from his own name to Cybernaut HK, a private
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company wholly owned by the Defendant (“Sept 2024 Transfer”). The
J Plaintiff claimed this transfer was in clear breach of the Injunction. Its J
concern appeared to be that the Cybernaut HK Shares could be transferred
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away at the Defendant’s direction without any effective third party scrutiny.
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9. But the Sept 2024 Transfer merely turned the Defendant’s
M direct interest in the ListCo Shares into his indirect interest held through M
Cybernaut HK, both of which were and still are caught by the Injunction and
N N
the Defendant was and still is bound by the Injunction. Moreover, the Sept
O 2024 Transfer was publicly reported and announced by way of Disclosure O
of Interest Forms dated 13 September 2024 (“Disclosure Forms”) for all to
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see, including the Plaintiff and/or its solicitors.
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10. On 5 December 2024, the Plaintiff’s solicitors first made
R enquiries with the Defendant’s solicitors about the Sept 2024 Transfer. In R
that letter, the Plaintiff’s solicitors referred the Injunction and to 2 DI Forms,
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one filed by the Defendant and the other filed by Cybernaut HK regarding
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1
A private Hong Kong company
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2
A company listed in Hong Kong
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the Sept 2024 Transfer. The Plaintiff’s solicitors requested the Defendant to
C refrain from disposing of the ListCo shares or if that had already been C
transferred to Cybernaut HK, procure the return of the same to the Defendant.
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Importantly, the Plaintiff’s solicitors even threatened to cite the Defendant
E for contempt of Court for the Sept 2024 Transfer should their requests not E
be met.
F F
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11. There was then subsequent correspondence between the parties’ G
solicitors dated 12 December 2024, 20 December 2024, 24 December 2024,
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14 January 2025 and 22 January 2025. By the time of these inter solicitors
I correspondence, the Defendant must have been well aware, or fully advised I
by his solicitors, that he was being closely watched as to his dealings with
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the ListCo Shares in light of the Injunction and the threat of contempt of
K Court. In fact, as early as the 12 December 2024 letter, his solicitors K
confirmed on the Defendant’s behalf that he would continue to abide by the
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Injunction and would not dispose of his assets including the ListCo Shares.
M M
12. In light of the above, it seems to this court an overreaction on
N the part of the Plaintiff to apply for the appointment of receivers over the N
Cybernaut HK Shares, at least not on such an urgent basis – there being only
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2 working days between 4 and 7 February 2025. It is also a gross
P exaggeration for Mr Lai to submit in his skeleton that “there is a pressing P
need for robust action to be taken by the Court” by reason of the “heightened”
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risk of dissipation as a result of the Sept 2024 Transfer. The rush of the
R Plaintiff to go to Court with such a large volume of materials appears more R
like an ambush on the Defendant than anything else, always frowned upon
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by the Courts.
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Deliberation
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13. The law on whether to grant interim interim relief is not
D complicated at all. D
E 14. In China Shanshui Cement Group v Zhang Caikui [2018] E
HKCA 409 at [13], Lam VP (as he then was) noted that:
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“…It has to be reiterated that interim interim relief is meant to be
G an urgent temporary stop-gap measure and the circumstances were G
such that the court has to do practical justice on the balance of
fairness even though it may not have sufficient time to consider
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the matter fully.” (emphasis added)
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15. Even at the early stage of the hearing, all Mr Lai submitted to
J this court on the law was the following: J
K “MR LAI: Now, my Lord, today is my K
application for interim interim relief, and
the test for the grant of an interim interim
L relief is really the balance of fairness, L
what the court can do to do practical justice
M on the balance of fairness when the court M
does not have a sufficient opportunity to
consider the matter. So it’s a question of
N balance.” N
O O
16. On the question of balance, one of the matters Mr Lai
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highlighted to this court was the so-called “known and decided risk of P
dissipation”, and there has been a “knowing and continuous breach of the
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injunction”. In the end, Mr Lai concluded the balance was in favour of grant.
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17. After those brief submissions, this court and Mr Lai went
S through the terms of the Draft Order in Annex 1, in particular the powers set S
out in Schedule 3 that he wished this court to confer on the Receivers even
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on an interim and interim basis. That took a long time. In the end, out of the
U 12 paras in Schedule 3, Mr Lai abandoned 8 of them. When that exercise U
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finished, and when Mr Lok began his brief submissions, the hearing had
C already overrun substantially. C
D 18. Mr Lok basically had 3 points. D
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19. First, the Sept 2024 Transfer was entirely transparent. This
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militated strongly against the Sept 2024 Transfer being a tool to dissipate F
the Defendant’s assets or indicated any material future risk of dissipation.
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That was the public reporting and announcement point about the Sept 2024
H Transfer. It was always known to the parties that Cybernaut HK is a Hong H
Kong company wholly owned by the Defendant. In fact, the Plaintiff had
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adduced its latest Annual Return dated 27 Mar 2024 which showed the
J Defendant was its sole director and 100% shareholder. J
K 20. Mr Lok therefore submitted there was no heightened risk of K
dissipation so there was no pressing need for making any Order at the
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hearing.
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21. Second, there was an injunction in place which was continued
N even up to the hearing. This was not disputed by Mr Lai. Mr Lok submitted N
that:
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“MR LOK: ...The point is if we want to
frustrate this injunction order, my
P client would not transfer to the Hong P
Kong private company, number one.
Q
Number two, he would not report it to Q
the whole world immediately in
September 2024. So on what basis does
R my learned friend come to court today R
and ask my Lord to make an urgent
appointment of receivers based on that
S September transfer? That’s my S
submission.
T T
COURT: So you are saying that the
injunction is good enough?
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MR LOK: Correct, yes.”
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22. Third, Mr Lok submitted that:
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“MR LOK: Simple. My Lord, that’s the first
point. Second point, my Lord asked
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Mr Lai many times, “What are you
asking from this court?” Right? My
F Lord, let me have a go to answer F
that. They bring this receivership
application, so they put in the
G standard forms of power, which my G
Lord tried to go through in Schedule
H
3. But what are they really looking H
for?
I COURT: Yes. I
MR LOK: Right? It’s to ensure that the
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Hong Kong private company does not
further transfer the listco shares
K away. K
COURT: There is an injunction.
L MR LOK: Exactly. That’s the whole point. L
COURT: Yes, carry on, please.
M M
MR LOK: Now, we say that if they want
N supervision, right, assuming my Lord N
is not with me that “You need
additional relief today urgently and
O the court will find” -- you know, if O
they need additional relief, why do
P they need to appoint receivers? P
Just appoint a director in the Hong
Kong company, for example. So my
Q learned friend cannot answer my Lord Q
why they need the full-blown powers
of receivers. So draconian and
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drastic.”
S S
23. Having read the parties’ skeleton and heard their submissions,
T it seemed to this court the Plaintiff could not establish any serious risk of T
dissipation of the ListCo Shares or any urgent need for the appointment of
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receivers on an interim interim basis. Further, the Plaintiff could have
C resorted to the remedy of contempt of court if it seriously thought that the C
Sept 2024 Transfer was in breach of the Injunction. The remedy was first
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suggested by the Plaintiff’s solicitors in their letter of 5 December 2024 but
E did not resort to. Lastly, there was a less draconian way to address the E
Plaintiff’s concern, apparent or real, than to appoint receivers over the
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Cybernaut HK Shares.
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24. In other words, this court accepted the submissions of Mr Lok
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and did not consider the balance should lie in the Plaintiff’s favour at the
I hearing on 7 February 2025. That was enough to dispose of the Plaintiff’s I
application for interim interim relief. For these reasons, the Plaintiff’s
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application was dismissed.
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Postscript
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25. Towards the end of the overran hearing when the dust was
M settled, Mr Lai still wished to show this court an authority to argue a point M
which would not have made a difference to the result of his interim interim
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relief application, as though the court’s time was unlimited and freely at the
O Plaintiff’s disposal. The sooner practitioners in general realise that this is O
just not on and enough is enough, the better for the administration of justice.
P P
Q Q
(Peter Ng)
R R
Judge of the Court of First Instance
High Court
S S
Mr Lai Chun Ho and Mr Han Sheng Lim, instructed by M/s Nixon Peabody
T CWL, for the Plaintiff T
Mr Michael Lok and Ms Valerie Kwok, instructed by M/s Jones Day, for the
U Defendant U
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