MAK KANG HOI v. HO YUK WAH DAVID

                   CACV 375/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 375 OF 2004

(ON APPEAL FROM HCA NO. 14674 OF 1999)

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D E C I S I O N

1.  This is an application for an adjournment of an appeal which is due to start in just over two weeks’ time.  Mr Jat SC, who has made the application, only came into this case a few months ago and, quite understandably, he considered that he needed a transcript of the evidence in the court below.  The difficulty is that the judgment was given more than a year ago and the appeal was set down in January of 2005.  The events took place back in 1997, and if this case were to go off it cannot be heard before October, and whether it can be heard then is another question. 

2.  The judgment sum is substantial.  It is for repayment of an outstanding amount of $32 million.  But, of course, it comes with interest and so forth to $48 million, possibly nearly $50 million now.  The defendant says that there is no possible way that he could pay that, and on that basis he applied for a stay of execution.  He is a solicitor and his only source of income, he says, now is as a solicitor, and if he were to be made bankrupt, or to have a judgment outstanding against him even of that amount, his practising certificate would be in jeopardy.

3.  That is all understandable and it makes the decision which has to be made even more difficult.  But I have to balance that against the facts of the case, which I shall not go into more than I have to, simply because of the nature of this application.  Mr Jat has explained why he considers he needs the transcript to check the evidence, and Mr Yu SC has explained that even if he were to get that transcript and to challenge some of the findings of fact of the judge it might be difficult for him to establish his own case, which does seem likely at this stage.

4.  So one is in this position, that the remaining part of the transcript which Mr Jat needs is likely to be available, I am told, either tomorrow or very shortly afterwards.  I consider this is a tough decision I have to make but I am afraid the appeal is going to go ahead.  Mr Jat and his team will have to burn the midnight oil.  I am very sorry for it, but occasionally, unfortunately, as leading counsel that is what one has to do.  Sometimes, one is employed as a fireman and, unfortunately, you have to behave like a fireman and get out of bed in the middle of the night.

5.  As I say, it is not an easy decision for me to make but I think it would be unfair on the plaintiff if I were to adjourn the matter.  I have considered as to whether I could adjourn it on condition that the stay is removed.  I do not think, in the circumstances of this case, that would be the correct course to take and therefore I do not take it.  Given the nature of what is required out of the transcript, I think that it should be possible for Mr Jat and his team to find the relevant parts in the transcript and consider those in the time which is available.  They have a fortnight.

6.  If it is any consolation to the parties, I simply say that it is not   necessarily convenient to the court to continue with the hearing, because given leave arrangements, it would have been more convenient for the court to have the case adjourned, but I do not think that that is the correct course to take on this occasion. 

(Submissions re costs)