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(a)
The present law in Hong Kong
There is of course no doubt that the Hong Kong court has jurisdiction to grant Mareva
injunctions. Adopting the case-law developed in England and Wales, the Hong Kong
courts have assumed the jurisdiction over the last 20 years or more, taking as its
statutory basis section 21L(1) of the HCO, which allows the court to grant an
injunction (whether interlocutory or final) in all cases in which it appears "to be just or
convenient to do so". The jurisdiction has now received legislative recognition in s
21L(3) which provides :-
"The power of the Court of First Instance under subsection (1) to grant an interlocutory
injunction restraining a party to any proceedings from removing from the jurisdiction of the
Court of First Instance, or otherwise dealing with, assets located within that jurisdiction shall
be exercisable in cases where that party is, as well as in cases where he is not, domiciled or
resident or present within that jurisdiction."
The situation which Proposal 17 is concerned with arose in Mercedes Benz AG v
Leiduck [1996] 1 AC 284, an appeal to the Privy Council from Hong Kong. The
plaintiff had brought proceedings against the defendant in Switzerland for a fraud
allegedly committed there. It sought a Mareva injunction from our courts in respect of
the shares in a Hong Kong company owned by the defendant. The Privy Council, by a
majority,
upheld the decision of the Hong Kong Court of Appeal (also by a
majority
) refusing such relief. It did so on two principal, related grounds.
Notes
Lord Nicholls of Birkenhead dissenting.
[1995] 1 HKC 448, Bokhary JA dissenting.
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