EASY FORTUNE PROPERTY LTD v. YUNG CHUN HIM

HCA 1484/2014

[2024] HKCFI 2745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1484 OF 2014

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BETWEEN

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REASONS FOR DECISION

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1.  Before me was the Defendant’s summons dated 15 July 2024 applying yet again for a stay of execution of this Court’s judgment dated 29 February 2024 ([2024] HKCFI 615)(respectively “D’s Summons” and “the Judgment”). This time the subject matter of the stay is specified as the Writ of Possession and Fieri Facias Combined dated 30 April 2024 obtained by the Plaintiff pursuant to the Judgment.

2.  To recap, in this action the Plaintiff money lender sues for the repayment of a $5,000,000 loan and the enforcement of the security in the form of a legal charge of the Defendant’s property. The repayment of the loan has been in defaulted since February 2014. In the Judgment, this Court adjudged the only outstanding issue in the Plaintiff’s favour and held that it was not inequitable to enforce the legal charge under section 18(3) and section 22(2) of the Money Lenders Ordinance Cap 163 up to the amount of $4.16 million with interest at judgment rate from 12 August 2016.

3.  The Defendant appeals against the Judgment, which appeal is pending.

4.  On 22 April 2024, the Defendant filed a summons applying from the Court of Appeal for a stay of execution of the Judgment pending appeal. The application was dismissed by the CA by its Decision dated 15 July 2024 ([2024] 3 HKLRD 857, “the CA Dismissal”).

5.  On the same date, ie. 15 July 2024, D’s Summons was issued.

6.  On 5 August 2024, the Defendant applied to the CA for leave to appeal to the Court of Final Appeal against the CA Dismissal. The application was dismissed by the CA on 27 August 2024 ([2024] HKCA 817).

7.  The Defendant then renewed his application for leave to appeal against the CA Dismissal to the Appeal Committee of the CFA. On 30 August 2024, the Registrar of CFA issued a Rule 7 summons calling upon the Defendant to file written submissions to show cause why his application should not be dismissed by the Appeal Committee.

8.  On 4 October 2024, the Appeal Committee of the CFA ordered that the Defendant’s application for leave to appeal be dismissed on the ground that it discloses no reasonable grounds.

9.  At the hearing, I dismissed D’s Summons summarily without hearing substantive arguments, and after having heard parties’ submissions on costs, ordered that the Defendant do pay the Plaintiff the costs of this application taxed on indemnity basis summarily assessed at HK$45,000 payable forthwith.

10.  I now give the reasons for the dismissal, which are evident.

11.  In the Defendant’s supporting affirmation, he stated that the stay he presently applied for before this Court is a stay pending his appeal to the CFA against the CA Dismissal.

12.  Firstly, and as have mentioned, the Appeal Committee of the CFA has recently on 4 October 2024 ordered the dismissal of the Defendant’s application for leave to appeal. Therefore, there is now no longer any such pending appeal forming the basis for the application for stay.

13.  Secondly, in his affirmation, the Defendant contended that the CA was effectively wrong in different respects in the CA Dismissal. The CA exercises appellate jurisdiction over this Court and in my view it is not right or proper for this Court to even hear substantively such contentions against the CA, and I refused to do so at the hearing.

14.  Therefore and thirdly, any stay pending an appeal from the CA to the CFA clearly should have been sought from the higher courts and not from the Court of First Instance.

15.  At the hearing, the Defendant orally applied to rely on yet another completely new basis for the stay, namely to give him time to “re-structure” the debt. That basis was not even suggested or mentioned in his supporting affirmation. I refused to allow it.

16.  The Plaintiff asked for cost to be taxed on indemnity basis as the Defendant is abusing the process here by applying for the stay from the CFI when it failed once before the CA and when he ought to have applied for the present stay from the higher courts. I agreed and so ordered and had the costs so assessed summarily on that basis.