RABOBANK ASIA LTD. v. NGAN PING WOON

1996, No. B 1638

IN THE HIGH COURT OF HONG KONG

IN BANKRUPTCY

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J U D G M E N T

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1. I do not consider that I should make an order staying these proceedings. The order is applied for on the basis that an appeal is being pursued which is a real appeal. The application is made on the basis that there is an appeal. What has to be decided is whether this appeal is a serious appeal.

2. When the question of the conditions which had been imposed by Leong J. for the stay of execution were brought before Ching J.A. in November of last year, he had this to say:

"For myself I am willing to proceed on the assumption that the Defendant cannot secure to that amount. The difficulty then facing the Defendant is that his opposition to the order was on an all or nothing basis. It is not possible for Leong J. in those circumstances, to order security which was within the Defendant's means. He then embarked on the balancing exercise, he had only two facts. The first was that the Defendant could not put up the full amount for judgment debt and the second was that he was exercising his undoubted right of appeal. It would not be right for me to prejudice the Defendant's chances on the appeal but Leong J. must have considered that they were slim and I must say that I agree with that. I do not see how Leong J. could have come to any conclusion other than the one to which he did come."

3. On the basis that, of course, Ching J. did not wish to prejudice any appeal, those of course are strong words and for my part, in so far as the issues in this case turn on that, I adopt them.

4. New points are said to arise as the result of an affirmation by Mr. Leo Boon-song which was filed in H.C. Action 9974 of 1995 on the 21st March 1997. Again, I do not think it right to pre-judge any appeal but suffice it to say that I do not think that the appellant's chances are any better on the points which have now been raised. The Appellant seeks to argue by counsel that there has now been disclosed some 94 million shares which as pointed out by Mr. Bleach had never been said before.

5. In my view, whatever happens on the appeal, from what I can see on the arguments which have been presented to me today which of course may not be the same as those presented on the appeal, it is likely that a very substantial amount will still be ordered and judgment will be given for a very substantial amount and if there is any leave to defend any of the amount, it would probably be with stringent conditions.

6. In those circumstances, as far as stay is concerned, I am not prepared to order a stay.