Ten years have passed since the Court of Final Appeal's judgment in Wing Fai Construction Co Ltd (in liquidation) was formally reported(1) – a landmark judgment that confirmed that the foundation for the exercise of the Hong Kong courts' jurisdiction to strike out for delay is abuse of process. Initially there were concerns that, while the reasoning in Wing Fai Construction Co Ltd (in liquidation) sounded good on paper, with appellate court emphasis on, for example, case management and remedies of last resort, it was (arguably) not particularly practical. In the 10 years that followed, these concerns have started to abate, principally because of the sensible exercise of the first instance courts' discretion. In a recent reported decision, the Court of First Instance of the High Court demonstrated again a robust application of the principles that underpin dismissal for want of prosecution (for further details please see "'Stale claims' on the way out?"). In a time of congested court lists, particularly given the aftermath of the covid-19 pandemic, it is hoped that this trend will continue.


In Golf Apparel Brands Inc & Anor v Tong & Ors,(2) the plaintiffs commenced proceedings against the defendants as far back as November 2000. Not much appears to have happened after 2004. The original first plaintiff (a US company) filed for bankruptcy in July 2005 and was replaced in June 2010. The second plaintiff (a Hong Kong company) was struck off the companies register in August 2015 but restored in April 2022 further to an application by the first defendant. The plaintiffs ceased to have legal representation in the case after November 2021.

While commencing proceedings in November 2000, the plaintiffs obtained a Mareva (freezing) injunction (the injunction) against the defendants and registered it with the Land Registry against the first defendant's interest in a residential property in Hong Kong (the property). Remarkably, the injunction appears to have remained in place for over 20 years.

In 2021, there appears to have been some activity in the case at the first defendant's initiative. For example, in September 2021, the first defendant applied for security for costs against the first plaintiff (an overseas company). Between October 2021 and January 2022, the first defendant also applied to:

  • dismiss the plaintiffs' claims against him for want of prosecution; and
  • discharge the injunction against him and remove its registration against the title of the property.

The principal issue for determination by the court was whether the plaintffs' action against the first defendant should be dismissed. If so, it followed that the injunction should be discharged.


A neat passage in the judgment summarises the legal principles that underpin an application to dismiss an action for want of prosecution.(3)

Applying the facts, the Court ordered that the plaintiffs' action against the first defendant be dismissed.

The Court noted, among other things, that:

  • no substantive step in the action had been taken since approximately 2004;
  • the plaintiffs' representative had not offered any good explanation for the delay or instructed legal representatives to oppose the first defendant's application;
  • it could be inferred that the plaintiffs were not minded to bring the proceedings to a conclusion;
  • the second plaintiff had at one time been struck off the companies register, having been restored following an application not by the plaintiffs' representative but by the first defendant; and
  • the delay was considerable and, in the circumstances, there was a real risk that a fair trial would not be possible – for example, given the passage of time, the first defendant had long since lost contact with some of the other defendants who were also potential witnesses. The plaintiffs' delay had caused prejudice to the first defendant.

The Court also ordered that the injunction be discharged and its registration at the Land Registry (against the title to the property) be cancelled.


While delay of itself is not determinative of abuse of process, in this case the length of the delay is telling. The fact that the injunction had been in place for so long appears to be an unusual aspect of the case that, when combined with the lengthy delay, suggests that an order for dismissal was clearly justified. Indeed, it is interesting that the first defendant chose to be active after so many years by, for example, applying for security for costs and dismissal for want of prosecution. The first defendant's ultimate goal may have been the removal of the registration of the injunction against the title to the property.

At the time of the Court of Final Appeal's judgment in Wing Fai Construction Co Ltd (in liquidation), emphasis was placed on the case management responsibilities of all parties in a case, including those of a defendant. A strategy of "letting sleeping dogs lie" was disavowed. That said, several first instance judgments have not, for example, found delay on the part of a defendant to be fatal to an application for dismissal for want of prosecution. As the court noted in Golf Apparel Brands Inc & Anor v Tong & Ors, it appears that the first defendant had not "done anything" between January 2004 and September 2021.(4) However, this paled in comparison with the circumstances that suggested the plaintiffs had no intention to proceed with the case or bring it to a conclusion – therein lies the hallmark of the necessary abuse of process underpinning an application for dismissal for want of prosecution.

Finally, the Court ordered the plaintiffs to pay the first defendant's costs of the action and of the dismissal application. These costs are likely to be substantial sums for the periods between 2000 and 2004, and 2021 and 2022 – whether they can be recovered is another matter.

For further information on this topic, please contact Samuel Hung or Antony Sassi at RPC by telephone (+852 2216 7000) or email ([email protected] or [email protected]). The RPC website can be accessed at


(1) [2012] 1 HKLRD 589.

(2) [2022] HKCFI 3038, 28 July 2022.

(3) Supra note 2, at paragraph 14.

(4) Supra note 2, at paragraph 16.