QIAN FEIYI v. FIRST PRESTIGE INC AND OTHERS

HCA 149/2024

[2024] HKCFI 3039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 149 OF 2024

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D E C I S I O N

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INTRODUCTION

1.  This is a stay of execution application made by one of the 3 defendants (“Ds”) against whom the plaintiff (“P”) had obtained a final judgment against under an order 14 application before Master Keith Lam (“the Master”) on 1 August 2024.

BACKGROUND

2.  On 10 October 2024, Ds’ solicitors have taken out a 3-minute summons on behalf of the 2^nd defendant (“D2”) under O 58 r 14(4) of the Rules of the High Court (“RHC’) to seek for a stay of execution of the final judgment granted by the Master on 1 August 2024 (including the subsequent Charging Order: Notice to Show Cause dated 13 September 2024) “in favour of the Plaintiff against all the Defendants” [emphasis added], pending the hearing of the appeal of the Order 14 application by a judge in chambers on 19 November 2024 (“D2’s Summons”).

3.  On 13 September 2024, D2 took out an application before Master D To to seek for a stay of execution of the Charging Order: Notice to Show Cause which P had taken out earlier against a property D2 has a 50% equity interest in. The property is a residential unit situated at Two Robinson Place, Mid-Levels, Hong Kong (“the Property”).

4.  On 14 October 2024, Master D To granted a Charging Order Absolute against the Property co-owned by D2.

5.  On the same day, D2 took out the present application before me.

DISCUSSION

6.  Although this application has been dressed up as a 3-minute direction hearing, D2 has, on 14 October 2024 (i) filed his 3^rd affirmation (which is 7-page long document); and (ii) provided the court and P an already affirmed (on 10 October 2024) but yet to be filed affirmation from one of the 1^st defendant’s (“D1”) employees, namely, Mr Ngat Wong (“Wong”), exhibiting a legal opinion from a Chinese law firm in the Mainland which is a 15-page long document dated 15 August 2024 (“the Legal Opinion”). It purportedly tries to explain the legal positon of the alleged loan agreement entered into between P and Ds according to the law in the Mainland. This was raised by D2 as the main plank of Ds’ defence in this case and the Legal Opinion was belatedly produced to try to support Ds’ allegations.

7.  In my judgment, it is clearly wrong for D2 to dress up this hearing as a direction hearing and fixed it for 3 minutes only when in fact and in truth they would like this court to deal with the substance of their arguments or at least to look at the substance of their purported defence in order to see if the court will allow them to have an “interim stay” until the appeal hearing which has been fixed before a judge in chambers on 19 November 2024. In the end, the court had actually spent 2 hours on the day of the hearing to deal with D2’s Summons. In my view, this amounts to an abuse of process and should not be encouraged or condoned by the court.

8.  In any event, it is blatantly clear to me what D2 is trying to do here. He is trying to put off the “evil day” when he and/or his co-defendants have to pay up the final judgment sum which was justly ordered by the Master on 1 August 2024 under P’s O 14 application.

9.  I see absolutely no substance in the purported reasons why this court should allow such an interim stay of execution being sought by D2 until the hearing of the appeal of this case before a judge in chambers on 19 November 2024.

10.  My reasons are as follows.

11.  First, the successful party of the O 14 application, ie P in this case, should not be deprived of the fruits of his success and a stay will only be ordered if there are good reasons to justify such a delay: See Star Play Development Limited v Boss Fashion Management Company Limited [2007] 5 HKC 84.

12.  Both D2 and Wong’s main reason (as stated in their respective affirmation) that they could not have obtained the Legal Opinion earlier and therefore able to set out the substance of Ds’ purported defence earlier, due to the fact that they are busy businessmen who are “required to travel often and are always busy with their work”, is in my view a rather pathetic and totally unconvincing excuse. I have no hesitation to reject it in its totality.

13.  Second, the fact that the Legal Opinion was only obtained 2 weeks after the final judgment was granted by the Master shows that this was an afterthought and was done with a view to delay the matter after Ds faced the imminent prospect of paying up the entire judgment sum ordered against them.

14.  Third, on the face of the document, there was in my view no reason shown by D2 (or the 2 other defendants) why the Legal Opinion could not have been obtained much earlier as the Order 14 application was taken out by P as far back as in March this year.

15.  Hence, even on the face of it, D2 or the other 2 Ds have in my opinion failed to meet the first criteria of the test in Ladd v Marshall in that they have failed to demonstrate why the Legal Opinion, ie the fresh evidence referred to in both D2 and Wong’s respective affirmation, could not have been obtained much earlier. Hence, on that ground alone, it is my view that most unlikely that any court will admit those fresh evidence at this very late stage when the appeal hearing of the Order 14 application will take place less than 4 weeks from today. I have no problem in rejecting the application to file fresh evidence.

CONCLUSION

16.  In the aforestated circumstances, I have no hesitation to dismiss D2’s Summons and order that he should pay the costs of P in this application on an indemnity basis, such costs will be summarily assessed by this court after receiving the statement of costs from P.

17.  I have invited P’s solicitors to provide me a statement of costs for D2’s Summons in the afternoon after the hearing for my assessment.

Summary assessment on costs

18.  Having studied the statement of costs provided by P and the list of objections lodged by Ds’ solicitors, I hereby summarily assess the costs of D2’s Summons (including the 2 hour hearing before me) at HK$75,000.00. Such costs to be paid by D2 to P forthwith.