XCHRX CHAN KAM CHEONG v. ZHANG SABINA SOI FAN

HCA12863/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12863 OF 1998

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D E C I S I O N

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1. This is an application by the Defendant in HCA12863/98 for a stay of execution. In summary proceedings taken by the Plaintiff, Master Jones made an order on 4 February 1999 giving leave to the Defendant to defend the Plaintiff's claim on payment into court of the sum of $8,466,000 within 28 days, i.e. before 4 March 1999. On 8 February, the Defendant filed an appeal against Master Jones' decision and that is scheduled to be heard next Tuesday, 23 March. On 11 February, the Defendant took out a summons for a stay of execution which came before Barnett J on 25 February. At that hearing Barnett J ordered a stay of the proceedings until 15 March which is today.

2. On behalf of the Defendant, it was submitted that there are two grounds upon which the court should grant a stay. The first relates to the question which has arisen as to whether the Defendant is the same person as one Wan Soi Fan who was adjudged a bankrupt in 1990. It was submitted that if the Defendant were indeed the bankrupt as the Official Receiver is trying to establish in proceedings against the Defendant's solicitors for discovery, then it is the Official Receiver who should be acting in these proceedings as the bankrupt's trustee in bankruptcy. The other ground is that the appeal will be heard on 23 March and a stay will not prejudice the Plaintiff.

3. In applications for a stay of execution, it is well established that the applicant has to establish good reasons for a stay. It has been held in Becker v Earl's Court, 1912, So.Jo.206 that the fact that the Plaintiff is a poor man is in itself no reason for a stay. That special circumstances have to be shown is well established. Mr Lo for the Plaintiff also referred to The Annot Lyle (1886) 11 PD 114 where Bowen LJ held :

"An unsuccessful litigant comes to ask us to deprive a successful one of the fruits of his success, until a further appeal is determined. No affidavit has been made on behalf of the applicants, and we must therefore assume that if the money is paid over to the respondents, and the appeal is successful, the appellants will be able to get it back..... We cannot assume that it is a matter of small importance to a successful party to go without his damages for a long time..."

It is also usual in such cases for the applicant to file an affidavit of means. The Defendant has not done so. In her third affirmation, all the Defendant says is that :

"The sum of $8.46 million is not a small sum and payment of the same into court would affect my liquidity. While the sum of money is not going to be paid to the Plaintiff any way, it would not prejudice the Plaintiff's right by deferring the time of payment until final determination of my appeal would I have proceeded with swiftly."

That is the sum total of the arguments that she has advanced.

4. In the proceedings below, the Defendant's counsel submitted to the Master that the Defendant was a big player in the metal market and $8 million was a small sum to her. In her first affirmation at paras.11, 18 and 20, the Defendant was depicted as a wealthy woman. No affidavit has been filed to explain any change in circumstances. I do not read the Defendant's 3rd affirmation as saying that the Defendant does not have the means to pay. At most, she is saying it would be inconvenient. That is not a valid reason for ordering a stay.

5. Turning now to the first point taken, namely the eventuality of the Defendant being the person declared bankrupt back in 1990, it would appear that an undischarged bankrupt may be made bankrupt and the creditors of the second or subsequent bankruptcy will be those creditors whose debts arose after the date of the preceding bankruptcy order and before the making of the subsequent bankruptcy order : seeBerry on Personal Insolvency - Law and Practice 1993 Ed. published by Butterworths. Mr Lo submitted that if the appeal is dismissed and if the debt is then unpaid, there would be a second bankruptcy. The fact that the Defendant is currently a bankrupt is no reason for granting the stay.

6. I find it almost offensive and certainly audacious that the bankruptcy point should be advanced by the Defendant as a reason for the court to stay execution having regard to the strenuous and rigorous stance of the Defendant in maintaining that she is not the bankrupt including a claim to diplomatic immunity when ordered to attend for cross-examination for the purpose of establishing her identity. In my judgment, the bankruptcy point is a digression. The real point is that no evidence has been adduced as to the Defendant's means or the hardship that would be caused to justify a stay. For these reasons, the application is dismissed with costs.