KONG HON KUI THOMAS and KONG HON QUAN MARIUS (Administrators of the Estate of Kong So Ngo, Deceased) v. WU YUK CHUN JUDY AND ANOTHER

HCA 350/2013

[2019] HKCFI 2416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 350 OF 2013

________________________

_______________________

____________________________________

REASONS FOR DECISION

____________________________________

1.  On 21 March 2019, this Court handed down judgment declaring that the Estate of Mrs Chung shall be entitled to the ownership and possession of the Property (“Judgment”). I shall adopt the same abbreviations and definitions in the Judgment, save as indicated herein.

2.  Pursuant to the Judgment, I ordered, amongst other things, that within 3 months of the Judgment:

(1)  the 1^st defendant (“D1”) to deliver up vacant possession of the Property to Ps, being administrators of the Estate of Kong So Ngo, ie Mrs Chung (“Estate”) (“Possession Order”);

(2)  D1 shall pay to the Estate damages/mesne profits at the ordered rate (“Mesne Profits Order”);

(3)  D1 to account to the Estate all funds withdrawn by her after Mrs Chung’s death from the bank accounts of Mrs Chung (“Account Order”);

(4)  D1 to return to the Estate all Mrs Chung’s personal items including but not limited to the 128 items set out in Annex A attached to the Judgment (“Chattels Order”).

3.  D1 lodged her notice of appeal on 18 April 2019 and the appeal has been fixed for hearing on 28 November 2019, ie in about 2 months’ time.  On 28 June 2019, D1 issued a summons for stay of execution pending outcome of the appeal.

4.  On 5 September 2019, D1’s former solicitors Messrs Hobson & Ma lodged Skeleton Arguments on her behalf, and the following day, D1 filed a notice to act in person.

5.  In short, the reasons put forward by D1 for the stay were that the appeal would most certainly be rendered nugatory and that there would be deleterious effect to D1 and her family if stay of execution was not granted and there were reasonable prospects of success in the intended appeal.  This was because:

(1)  if there were no stay, Ps would likely to immediately dispose of the Property and to distribute the proceeds to the beneficiaries;

(2)  D1 and her family were residing in the Property, and if Judgment was executed and if subsequently the appeal were to be allowed, D1 and her family would have to move out and then move back in afterwards, and that they would be placed in an undesirable situation that would not bring benefits to anyone but great inconvenience and unnecessary expenses;

(3)  D1’s legal team was of the view that there were reasonable prospects of success in the appeal.

6.  As could be seen from D1’s Skeleton Arguments and her affirmation filed in support of her application for stay, D1 did not provide any grounds for seeking a stay in relation to the Account Order or the Chattels Order, and that her submissions on stay were only in respect of the Possession Order.

7.  At the hearing, this Court granted an interim stay only in respect of the Possession Order, namely in respect of paragraph 2 of the Judgment, up to the date of the hearing of the appeal, conditional upon D1 paying into court a sum of HK$200,000 within 21 days, namely on or before 3 October 2019.  No interim stay was granted in respect of the other Orders in the Judgment.

8.  My reasons included the following: -

(1)  As observed by Ma J, as he then was in paragraph 9 (1) of Star Play Development Ltd v Bess Fashion Management Co Ltd, HCA 4726/2001, 7 June 2002, in determining the question whether or not an appeal would be rendered nugatory, the court must first have regard to the nature of the order that is the subject matter of the appeal, and he had gone on to observe that where, as in the case of Star Play, the relevant order is one for the possession of premises, it can readily be appreciated that without a stay of execution, more often than not, it is likely than an appeal would be rendered nugatory.

(2)  Although at the hearing, Mr Ng has offered on behalf of Ps an undertaking not to sell the Property pending the determination of the appeal, I agreed with D1 that if there were to be no stay, she would be placed in an undesirable situation if she and her family were to have to move out from the Property and then if her appeal were to be successful, she and her family would have to move back in afterwards.  In my view, this would not bring benefit to anyone, and would cause great inconvenience, disruption and unnecessary expenses to all.

(3)  Although most of the findings of this Court in relation to the Promise were factual, one of D1’s grounds of appeal was that, subject to the transcript of the trial, this Court erred in making factual findings not substantiated by evidence.  Without the transcript, I was unable to say there would be no arguable appeal at all.

(4)  D1 submitted at the hearing that she had no money and that she had previously tried to apply for legal aid.  Her application for legal aid was prior to the trial, and it was rejected and she then instructed solicitors and counsel to attend a 7 day trial.  In any event, D1’s claim that she had no money was only a bare assertion with no supporting evidence, and there was no reason as to why she should not pay any sum at all for continuing to remain in the Property.

(5)  The amount of HK$200,000 was arrived at by rounding off 5 months of mesne profits, at the ordered rate of HK$41,200 per month, and there was no sufficient evidence that she was not able to pay the sum.

9.  For the above reasons, I ordered the interim stay on a condition as set out earlier.  Costs be in the cause of the appeal.