XCHRX RAMESH KHANCHAND CHUGANI v. CHONG KAR NING AND OTHERS

HCA 6996/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 6996 OF 2000

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J U D G M E N T

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1. This is an appeal by the appellants, 1st and 2nd defendants, against the order of Master Mary Yuen of 12 September 2001 in which, having found that the 1st and 2nd defendants had neglected or refused to comply with the order of specific performance granted by Master Au Yeung on 12 April 2001, she made orders that a Master of the High Court execute certain board resolutions to give effect to Master Au Yeung's order.

2. This is not an appeal against the order of Master Au Yeung. There was such an appeal which was heard by Deputy Judge Woolley on 16 August 2001 and which he dismissed on 23 August 2001. An appeal to the Court of Appeal has been lodged against Woolley DJ's order but has not yet been heard.

3. Initially this morning there was essentially only one matter raised by Mr Chan for the appellants. He asked that I adjourn this appeal so that the appellants might attempt to obtain evidence of collusion between the plaintiff, the 4th Defendant, and "the Chinese parties" (the directors or representatives of SKEC and SLEC). He based his submissions on re-entry permits exhibited by his instructing solicitor which he said cast doubt on whether there had been a board meeting on 22 December 1999 as the plaintiff alleged. Mr Chan, however, conceded that his argument had lost a lot of force when it was pointed out that even on the defendants' case that there had been a meeting that day. (see para. 11 of the affirmation of Mr Yeung Chung Hei.)

4. In any event, this court is concerned with the execution of the order of Master Au Yeung which was upheld by Woolley DJ, not its validity. If the appellants seek to raise additional matters which relate to the validity of the order of Master Au Yeung, they should do so before the Court of Appeal not before this court.

5. At a very late stage of the proceedings this morning, Mr Chan asked for an adjournment on the ground that he and his instructing solicitor, Messrs Fan, Wong & Tso, had only been instructed recently, the defendants having been represented by Johnson Stokes and Master until Monday this week, 26 November 2001. He said that he was dependent on the papers he had obtained from the plaintiffs and had had insufficient time to go through them and in particular to consider whether objection could be taken to the order of Master Mary Yuen insofar as it ordered a Master to execute board resolutions on behalf of Madam Wong Yi Lam, the 1st defendant's wife, and V-Mark Resources Ltd. who were not parties to the proceedings.

6. While accepting that Mr Chan may have personal difficulties in this case I am not prepared to grant the adjournment sought. A notice of appeal was filed as long ago as 19 September, 10 weeks ago. An appellant, having taken the decision to appeal, cannot expect indulgence if he changes his legal representative shortly before the hearing of his appeal in order that his new representative can look through the papers in order to see if there is any arguable ground of appeal.

7. Insofar as the point raised by Mr Chan regarding the Master executing board resolutions on behalf of Madam Wong and V-Mark Resources Ltd., I am satisfied that there is no substance in this point. Master Au Yeung ordered the 1st and 2nd defendants to execute or procure the execution of all necessary documents including the board resolutions in question.

8. Insofar as execution by Madam Wong Yi Lam and V-Mark Resources Ltd. are concerned, the 1st and 2nd defendants could only procure them to execute the documents. If the 1st and 2nd defendants failed to do so and provided that the court is satisfied that it fell within the 1st and 2nd defendants' power to procure Madam Wong and V-Mark Resources Ltd. to execute the documents, the court is entitled to order a Master to execute the documents on their behalf. There is ample evidence that it was within the power of the defendants to procure Master Wong and V-Mark Resources to execute the documents.

9. I, accordingly, refuse Mr Chan's application for an adjournment and I dismiss the appeal.