HSBC PRIVATE TRUSTEE (HONG KONG) LTD v. AU-YEUNG CHUNG

HCA 1662/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1662 OF 2001

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R U L I N G

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1.  There are really only two points in support of the application for a stay:  firstly, the proximity of the appeal itself - it is due to be heard in mid-February next year; and the second relates to the point that Mr Szeto seeks to make, which is that this appeal may, for all practical purposes, be rendered nugatory if a stay is not granted. 

2.  His client of course is a widow, she has no assets, and in such circumstances the plaintiff will almost certainly seek to enforce the award of mesne profits by issuing bankruptcy proceedings against her. Mr Szeto submits that there is a real risk that if that happens and if those proceedings were to be heard quickly that her trustee in bankruptcy may take the view that it is really not worth pursuing this appeal and the effect of all of this is that while she may well have a perfectly arguable appeal she simply will not be able to present it to the Court of Appeal.

3.  The other side of the coin is that, of course, the plaintiff knows, or ought to know, that it is not likely to see any of this award of mesne profit given the fact that she has no assets. She has also filed an affirmation which says that her children are not in a position to make any contribution to the award of mesne profits which might have persuaded the plaintiff to stay its hand pending the hearing of the appeal.

4.  These are all perfectly understandable points but the fact is that this is one of those cases where the usual course of events ought to follow.  An appeal of this sort does not operate as a stay, hence this application and, I have absolutely no doubt that if the defendant were somehow to pay the judgment and were to succeed in the appeal that the plaintiff is in a position to reimburse her.  In any event, it has given an undertaking in damages so far as the Possession Order itself is concerned, which is the real subject of the appeal.

5.  In these circumstances I can see no proper grounds for granting a stay.  I am afraid I am going to refuse this with, inevitably, an order for costs in the plaintiff’s favour together with Legal Aid taxation of the defendant’s costs.