Tuesday 16 December 2014

Hong Kong: Unfair prejudice - Court of Final Appeal declines to decide merits of case

Last year the Court of Appeal of the High Court gave judgment in Luck Continent Ltd v Cheng Chee Tock Theodor (CACV 107/2012), a case concerning a listed company and the unfair prejudice remedy (now found in Part 14 of the Companies Ordinance, Cap 622). An appeal was made to the Court of Final Appeal and this was heard several days ago: see here. The Panel included, as a non-permanent judge, Lord Hoffmann, a former Law Lord from the United Kingdom well known for his contribution to the development of the English unfair prejudice remedy (see, e.g., O'Neill v Phillips [1999] 1 WLR 1092).

The hearing did not, however, provide the court with the opportunity to consider the unfair prejudice remedy in the very unusual circumstances of the case. This was because the appeal was academic and the court declined to exercise its discretion to consider the merits of the case. The opinion of the court was delivered by Mr Justice Ribeiro PJ. He observed that difficult and interesting questions were raised by the appeal but that it was not one of those "rare and exceptional" cases where, although academic, the court should decide its merits.

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