THE BANK OF EAST ASIA, LTD. v. SUN CHI WAI AND ANOTHER

1996, No. M.P. 670

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This appeal is dismissed. It became clear on the first hearing before this Court on 11th June 1997 that Mr. Sun Chi Wai, the 1st Defendant who appears in person, had no real or meritorious ground in his appeal against the Order of Master Jennings dated 28th February 1997. Effectively at that hearing there was advanced an argument in favour of a stay of execution; at least, that was the effect of that which Mr. Sun, who was not represented, then put before me.

2. I also received assurances from Mr. Sun at that first hearing that he was going to make repayment of at least some of the moneys due to The Bank of East Asia. He also told me at that stage that he was going to attempt to refinance the property through the Housing Authority. He has filed no further evidence and I am not at all sure how this is going to take place. He is now back before the Court on the adjourned appeal today, 23rd June, the Court having stood down the matter after the initial hearing date. I should add that Mr. Morley, who continues to appear for the Bank, acted entirely fairly and did not then dispute the fact that the case be stood down to see if Mr. Sun could and/or would make good on the promises he made to this Court. So the matter was then left unresolved.

3. It now transpires that Mr. Sun has made no repayment at all, nor has he made any effort so to pay. Indeed, he opened this afternoon by telling me he has been to Macau and that that visit had got in the way, so to speak; I think he said that he had attended a friend's birthday celebration. He has now handed me today a copy of the legal charge in question. He has also handed up two pieces of paper: the first page being a receipt of an administration fee from the Housing Authority for refinancing the flat in question, and the second being some sort of document in Chinese, being an application for that I understand is a certificate for sale of the premises. Mr. Sun assures me (and at this stage I am bound to say I take his assurances with rather less confidence that I did before) that the agreement he has reached with the Housing Authority is that they would refinance the property, and repay to The Bank of East Asia all moneys owed by him to the Bank; such payment would be to his account, and thereafter he would make repayments to the Housing Authority.

4. Mr. Sun has made it clear, I took down his words, that "I think I have the obligation to pay off all outstanding moneys to the Bank against the legal charge I signed. I was told last week by the Housing Authority that they have an agreement with The Bank of East Asia. If the Bank called the loans, the Housing Authority will make the prepayment I need and I will pay all the moneys to the Housing Authority", or words very closely to that effect. Mr. Morley, who again has leaned over backwards to act in a spirit of fairness, says that this is the first he has heard of this. He has no knowledge or instructions regarding any agreement with the Housing Authority.

5. The Court is put in an invidious position. On the one hand, a person stands to lose his home. On the other hand, this is a court of justice, not of sympathy. The Bank is entitled to the protection of the rule of law just as much as any individual. Mr. Sun, the Appellant, although he has no real grounds of appeal, as is quite clear, maintains that arrangements will be made for payment. That, however, is not my business in terms of this appeal.

6. Accordingly, the appeal is dismissed with costs. This must be correct as a matter of law. All I can do is to express the view from the Bench that if indeed there is anything to Mr. Sun's story about the refinancing by the Housing Authority, and the consequent clearing by the Housing Authority of his debt to the Bank, the Bank will no doubt choose to take this into account in deciding whether or not immediately to effect a writ of possession. Clearly the Bank will be the best judge of its own affairs. I should have thought that if Mr. Sun is able to demonstrate to the Bank that there really is going to be a refinancing as he described it to me, it would be in the Bank's interest to wait for another 30 days or so, or whatever the period may be. But I am afraid that such comments cannot get in the way of the stark fact that this appeal against the Order of Master Jennings must fail. The Court has no alternative, bearing in mind that which the Appellant has placed before it.