THE YIEN YIEH COMMERCIAL BANK LTD v. HUNG OI WAH AND OTHERS

CACV 260/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 2009

(ON APPEAL FROM HCMP NO. 7149 OF 1999)

________________________

BETWEEN

____________

____________

____________

____________

Hon Le Pichon JA:

1.  These were the first defendant’s applications for leave to appeal to the Court of Final Appeal and for a stay of execution of the judgment of this court dismissing her appeal from an order for possession in a mortgage action in favour of the plaintiff bank. There was also a summons by the bank for an order that leave to appeal should be conditional on the provision of security in the sum of $400,000. This court granted leave to appeal conditional on the provision of security in the sum of $150,000 within two months but refused the stay for reasons to be handed down which we now do.

Leave to appeal

2.  It is common ground that the first defendant is entitled to appeal as of right pursuant to section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  The only issue is whether leave should be made conditional upon the provision of sufficient security under section 25(2) of the Ordinance.  The first defendant is no longer legally aided and appears in person.  She has filed an affirmation to the effect that she is not able to afford $400,000 and if leave were made conditional, it would stifle her appeal.

3.  Even where a party is entitled to appeal as of right, this court almost invariably grants leave conditional on the provision of security.  The fact that the first defendant is impecunious does not displace the general rule.

4.  It is clear that if the first defendant were to be unsuccessful on her appeal, the costs that will be incurred by the bank in resisting that appeal will be irrecoverable except in the unlikely event of the proceeds of sale proving to be more than sufficient to satisfy the outstanding debt and the costs incurred to date.  In the circumstances of this case, the bank should not be made to face that risk since it has been successful in the action and also has successfully resisted the first defendant’s appeal.

5.  As to the appropriate amount of security, given that, as matters stand, only one issue is raised on the intended appeal, security in the sum of $150,000 should provide sufficient protection.  Accordingly, leave was granted conditional on the amount of $150,000 being paid into court within two months from today, costs to be costs in the cause of the appeal.

The stay

6.  As recorded in §1 of the judgment, the first defendant (who was then legally represented) did not oppose the bank’s application made at the conclusion of the appeal hearing to lift the stay that had been granted by Saunders J pending the appeal.  The present application for a stay is diametrically opposed to the first defendant’s former stance but no explanation for the change of mind has been given.

7.  Be that as it may, the onus is on the first defendant to show that there are good reasons to justify a stay.  The bank has been successful in the court below and in this court and it is not the practice of this court to deprive a successful litigant of the fruits of his litigation.  The most important consideration in respect of whether a stay should be granted is whether there is a strong likelihood that the proposed appeal would succeed.

8.  The only ground of appeal relied on is that this court did not deal with the issue of law raised below which was based on the Nancy Kissel case.  It is alleged that certain questions put in cross-examination were impermissible as a matter of law.  But it is important to bear in mind that the Kissel case is a very different case.  Even if the first defendant were correct that certain questions put in cross-examination below were impermissible, they are a far cry from the impermissible aspects of cross-examination involved in the Kissel case which were of an entirely different order.

9.  In the Kissel case, it was the cumulative effect of the impermissible aspects of the cross-examination that was considered to be prejudicial in that it might well have contributed significantly to an adverse assessment by the jury of her credibility, thereby resulting in an unfair trial. In that case, the “unfair cross-examination went on repeatedly and not for hours but for days”.  The Court of Final Appeal concluded that the irregularities had a material impact on the outcome of the trial, rendering it substantially unfair.  Nothing of the sort happened in the present case.

10.  On the appeal, the main challenge was to the judge’s factual findings.  It is apparent from §27 of this court’s judgment that it considered that the appeal could not possibly succeed without overcoming the first hurdle which was the judge’s conclusion on undue influence.  In other words, this court did not consider that the issue of law alone would be sufficient for the first defendant to succeed on the appeal.  I remain of that view.

11.  The main reason given in support of a stay was that the first defendant’s grandson who has been living with her in the property since 2000 needs a place to study for important public examinations scheduled for May 2010.  In practical terms, the bailiff requires a certain amount of time before execution is actually levied.  It is the bank’s understanding that the process takes 10 weeks at a minimum.  It will mean that execution is unlikely to be levied until the end of June at the earliest which is well beyond the date of the examinations.

12.  The other reason advanced is that the first defendant is sentimentally attached to the property which has been her home for most of her life and it was said that once it is sold, there is no guarantee that she could buy it back.  In my view, that is not a valid reason that would justify a stay of execution.

13.  Accordingly, the application for a stay was refused with costs in favour of the bank.

Hon Cheung JA:

14.  I agree.

Hon A Cheung J:

15.  I agree.