CHOY BING WING v. THE CHIEF JUSTICE, JUDICIARY OF HKSAR, CHINA AND OTHERS

HCA125/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 125 OF 2005

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J U D G M E N T

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1. The defendants obtained a judgment of inter alia of costs of the action before Suffiad J on 15 July 2005.  The amount of costs was taxed by the master at the sum of $285,766 on 23 May 2006 and the Allocatur was issued on 20 June 2006.

2. On 20 November 2006, Master Hui granted a Charging Order Absolute in respect of five real properties owned by the plaintiff.

3. The plaintiff now appeals against the aforesaid order of Master Hui.

Extension of time

4. Order 58, rule 1(3) of the Rules of the High Court provides that the notice of appeal must be issued within 14 days after the judgment, order or decision appealed against was given or made.  The deadline for filing the notice was therefore 4 December 2007.  The notice of appeal filed on 28 December 2007 was therefore out of time.  The court of course has the jurisdiction to extend the time of filing the notice of appeal.  The plaintiff submitted that the reason why the notice was issued beyond time was because the sealed order was only received by him on 27 December 2007.

5. In this appeal I would consider whether there is any merit in the appeal in considering whether I should extend the time for the same.  I also noticed there was no prejudice against the defendants when the notice of appeal was filed out of time by a little bit more than three weeks.

6. The 1^st ground of appeal was that the plaintiff is still appealing against the order of Suffiad J under CACV286/2005.  It is, however, trite law to say that an appeal would not operate as a stay of the appeal.  The same argument was advanced by the plaintiff in the other case : Ng Yat Chi and Choy Bing Wing v. China Resource (Holdings) Company Limited and others (HCA424/2005).  However, Mr Registrar C. Chan decided that :

“	... As long as the judgment is valid and its effect has not been stayed, I have to grant leave to enforce it.”

and :

“	... I have in my hand a judgment and an order which is valid and has not been overturned.  Further, the effects of the judgment and order have not been stayed.  In fact, no such application has been made.”

7. Accordingly the 1^st ground of appeal failed.

Over-security

8. The defendants sought to charge against five properties of the plaintiff in respect of the sum which is a little bit less than $300,000.  According to the plaintiff, the total value of these five properties worth more than $18 million.

9. I have enquired during the hearing from the government counsel appearing for the defendants Mr Brian Leu as to why the defendants required the security of five landed properties against a considerably lesser sum of about $300,000.  Mr Leu has fairly conceded that he has no answer to that question.  In his submission, he has stated that the plaintiff failed to disclose the information concerning the occupancy of these five properties.  However as I have pointed out to Mr Leu that on any view, even if any of the properties were occupied by a tenant, the proceeds of sale subject to tenancy would exceed $300,000 anyway.

10. At the hearing the plaintiff disclosed that :

(a)	in respect of the 1st property at Hong Kong Jewellery Building, it is now occupied by a tenant, the Buddhist Association; and
(b)	in respect of a ground floor shop at Tak Lee Building in Queen’s Road West, it is now occupied by an optical company.

11. When asked which property the defendants would choose, Mr Leu said he would opt for the ground floor shop in sub-paragraph (b) above.

12. The whole purpose of a charging order was to secure payment of the amount of taxed costs.  On any view, it is improper for a creditor to charge against all five properties of the plaintiff which is valued at millions of dollar.  There will be sufficient security for the defendants when the shop property is sold even subject to tenancy.  Thus, I would allow the appeal in part that the charging order absolute should be made against the shop property at Tak Lee Building only and discharge the charging order altogether in respect of all the other four properties.

13. Lastly the plaintiff pointed out at the hearing that no auctioneer would sell any property under appeal since the property could not be sold subject to the setting aside of the judgment debt in the appeal.

14. However it is a matter of enforcement of the charging order and there is no reason why the charging order should not be made absolute against the property of the plaintiff as a kind of security for the judgment debt.

Conclusion : costs of the appeal

15. The plaintiff is partly successful in the appeal in which four other properties are now discharged from the charging order.  However in the main appeal he failed in discharging the charging order altogether.  I consider that the fair order of costs should be “no order as to costs” for the appeal and there shall be an order nisi to that effect accordingly.