XCHRX HONG KONG LEE MAN SHAN MEDICINE MANUFACTURING LTD. v. HUA WEI (H.K.) PHARMACEUTICAL DEVELOPMENT CO. LTD. AND ANOTHER

HCA 15529/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 15529 OF 1998

______________

______________

________________

D E C I S I O N

________________

1. This is an application on the part of the Defendants for a stay of execution, pending their appeal against my decision made on 23 September 1999 and handed down on 27 September 1999.

2. It is well-established that the lodging of an appeal does not entitle the appellant to an automatic stay of execution.

3. The issue before me is whether in the exercise of the court's discretion, the court should stay execution after consideration of all the relevant materials. What are the materials before me which would enable me to consider exercising my discretion in the Defendants' favour?

4. Mr. Tang, who appears for the Defendants, refers to the merits of the appeal. That is of course a relevant consideration. In this regard, I refer to my Decision handed down on 27 September 1999 in which I struck out the substantial parts of the Defendants' defence as disclosing no reasonable defence and/or as an abuse of the process, and entered summary judgment against the Defendants. No further arguments have been put forward by the Defendants today in addition to those put before me, and I say no more other than that I consider that there is no strong case on the merits.

5. Further, Mr. Tang submits that the Defendants would suffer irreparable injury if execution is not stayed. However, no materials have been put before the court as to what this irreparable injury is alleged to be. No affirmations have been put before me, and Mr. Tang could not say anything other than that the Defendants' business would suffer if a stay of execution were not granted. That is inadequate material for me to put into the balance and in all the circumstances, in the exercise of my discretion, I would dismiss this summons with costs to the Plaintiff.