CHENG TANG KAM YUNG v. TANG KAM CHEUNG AND ANOTHER

CACV 185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 of 2008)

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BETWEEN

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1.  Deputy High Court Judge Simon Leung removed the 1^st defendant as the administrator of the estate of his late father and replaced him by a professional administrator. The defendants lodged an appeal against the judgment and applied before Judge Leung for a stay of execution of the judgment. It was refused. The defendants then renewed the stay application before Chu JA, sitting as a single judge of the Court of Appeal. It was likewise refused on 5 December 2013. The defendants by summons dated 23 December 2013 asked this Court to stay the execution of the judgment. In our view the defendants’ summons must be treated as an appeal out of time against the determination of a single judge of this Court. Under Order 59 rule 14(12) of the High Court Rules the application must be made within 10 days of the determination. The defendants’ application is out of time. The 1^st defendant says that he was told by a staff of the registry that the application was within time. We will address the matter on its merits.

2.  In refusing the stay, Chu JA was exercising a discretionary remedy.  The principle regarding an appeal to this Court against the exercise of discretion by a single judge is that this Court is not to exercise the discretion afresh but to consider whether the discretion had been improperly exercised in the first place.  This Court will only interfere if, for example, the discretion was exercised on erroneous principles or irrelevant considerations had been taken into account or relevant considerations had been ignored.

3.  In the present case Chu JA clearly had recognised the principle governing the stay of execution of judgment pending appeal. Short of demonstrating that the appeal is so strong that justice requires the execution of the judgment to be stayed, the appellant must show that the appeal will be rendered nugatory if the execution is not stayed.

4.  The 1^st defendant was removed because of his delay in completing the administration, failure to administer the estate properly and failure to render proper accounts.  Some examples of the 1^st defendant’s default are his reliance on loans obtained from individuals who charged exorbitant interest rate of 43-48% and while the estate had received over $60 million, the 1^st defendant claimed that they were absorbed by the expenses of and for the estate.  These are all factual findings which the Court of Appeal is unlikely to disturb unless they are plainly wrong.  Chu JA had considered the merits of the appeal and the arguments of the defendants in seeking to challenge the judgment.  She held that the defendants had not demonstrated that the chance of success of the appeal is high.  We agree with her view.  The defendants are now merely repeating their arguments made before Chu JA which she had addressed.  Many of these matters clearly do not assist the defendants in establishing a strong appeal, such as the plaintiff not being a filial daughter, the terms of the 1^st defendant’s undertaking on the sale of the estate, the method of sale of the estate by professional administrator, his expenses and also local customs on who should be the administrator.  Neither can we see how the defendants’ appeal will be rendered nugatory in the event they are successful if the judgment is not stayed now.  Between now and the appeal the task of administration is simply taken over by a professional administrator.  Hence Chu JA said that the defendants’ position is not prejudiced.

5.  Accordingly, the appeal is dismissed with costs to the plaintiff.