WANG BOHENG v. 于卡弗

HCA 193/2025

[2025] HKCFI 6212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 193 OF 2025

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D E C I S I O N

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A.  INTRODUCTION

1.  This Court gave summary judgment on 29 September 2025, in favour of the Plaintiff (“the Judgment”). This is the hearing of the Defendant’s summonses for (a) stay of execution pending appeal, (b) security to be provided by the Plaintiff for the appeal; and (c) disclosure of the Plaintiff’s actual residential address. For the purposes of this Decision, I will adopt the abbreviations used in the Judgment.

2.  The Defendant applies for the stay of execution on the following grounds:

(1)  The Defendant’s appeal is genuinely arguable; and

(2)  The Defendant’s appeal would be rendered nugatory without a stay.

He submits that in this particular case, the Plaintiff has no assets in Hong Kong and has left this jurisdiction. These fall squarely within the legal principles warranting a grant of the orders sought.

B.  LEGAL PRINCIPLES

3.  The principles governing stay of execution pending appeal are summarized by the Court of Appeal in Fung Shing Chung v Choi King Hung [2024] HKCA 1021 at §20:

(1)  The applicant is required to demonstrate a ‘good reason’ for a stay of execution.

(2)  Generally speaking, the existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It is the minimum requirement before a court would even begin to consider granting a stay.

(3)  In other words, if the Court is not convinced that there exist arguable grounds of appeal, no stay will be granted however exceptional the circumstances may otherwise be justifying a stay of execution.

(4)  On the other hand, the existence of a strong appeal or a strong likelihood of success will usually by itself enable a stay to be granted because this would constitute a good reason for a stay.

(5)  In most cases, where the Court is faced with simply the existence of an arguable appeal, it becomes necessary for the applicant to provide additional reasons as to why a stay is justified.

(6)  Commonly, this is done by demonstrating that without a stay the appeal would be rendered nugatory, for example, because of an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal against a money judgment, or because the failure to grant a stay would have a serious deleterious effect on the applicant.

(7)  In considering an application for a stay pending appeal, it would be impractical and even undesirable for the Court to go deeply into the merits or strengths of the appeal, although the Court must still form a preliminary view of these aspects.

(8)  While the existence of a strong appeal would tend to lead the Court to exercise its discretion in favour of granting a stay, the threshold is a high one. The Court has held that for there to be a ‘strong appeal’ such that it would justify the grant of a stay without more, the situation must be one which would lead the Court to conclude that something has grievously gone wrong with the process of law in the Court below, or that the appellant is ‘almost bound to succeed’. Absent such a case, something more needs to be demonstrated.

4.  A finding of fact may only be challenged as an error of law if the decision was based on a finding of fact or inference from facts which was perverse or irrational; or there was no evidence to support the finding; or the decision was made by reference to irrelevant factors or was made without regard to relevant factors: Kwong Mile Services Ltd v CIR (2004) 7 HKCFAR 275, §§31-34. The appellate court would not disturb the decision on fact-finding unless it regards that decision as contrary to the true and only reasonable one: Kwong Mile, §37.

5.  To show that an appeal may be rendered nugatory:

(1)  The burden is on the appellant to show by way of credible evidence that there is a real risk and legitimate fear that any payment to the respondent cannot be recovered should the appellant succeed in his appeal.

(2)  The burden is not on the successful party to make an exhaustive list of assets to disprove such a risk and to allay such a fear.

(3)  For example, the assertion that a party is a shell company with an issued share capital of $1 and has no other assets has been held to be insufficient to make out a case of impecuniosity.

(4)  The mere fact that the successful party is a foreign plaintiff is an argument for making a payment into court but is not itself an argument for a stay.

See Red Asset Management Ltd v Sancus Group Ltd [2025] HKCFI 4166, §5.2, DHCJ Jonathan Wong, citing Toeca National Resources BV v Baron Capital Ltd, CACV 55 of 2013, 16 August 2013, §12.

C.  STAY OF EXECUTION PENDING APPEAL

6.  The Defendant claims that this Court erred in the Judgment by:

(1)  Misapplication of the Order 14 test by treating disputed matters as established facts;

(2)  Failing to consider HCA 1608/2025 (the “Debt Recovery Action”) and the Plaintiff’s inconsistent positions, amounting to material non-consideration and abuse of process;

(3)  Erroneously assuming the existence of the loan in the absence of any evidential foundation.

7.  When one recalls the fundamental facts, it is easy to see that the Defendant’s appeal is not arguable. The Defendant never denied that the Plaintiff’s grandfather advanced the Loan to enable him to purchase the Property in the first place. He never denied that he had signed the receipt clause on the SPA and the series of Documents prepared in 2022. He merely claims that he did not know the purpose of the 2022 Deeds which caused him to incur a liability of HK$107 million. In the light of such undisputed facts, the grounds of appeal now advanced are but a rehash of the arguments before this Court, which have been rejected. The challenges to fact finding are but peripheral and insignificant in nature. The Defendant has not begun to show that the conclusion on facts that this Court reached in the Judgment was anywhere close to meeting the tests in Kwong Mile.

8.  The Defendant has failed to meet the minimum requirement of showing an arguable appeal. A stay of execution is thus out of the question. It is not necessary to consider whether refusal of a stay will render the appeal nugatory.

D.  SECURITY FOR COSTS TO BE PROVIDED BY THE PLAINTIFF

9.  The Defendant clarifies in his oral submission that his request is for the Plaintiff to give cash security in the amount of the judgment sum for the appeal (not the counterclaim). He points out that the Plaintiff has no property registered in Hong Kong, no company or business registration, no identifiable assets within the jurisdiction and only has a “borrowed commercial address” used as correspondence address. He also submits that the Plaintiff and his family have permanently left Hong Kong in or around 2022. There is an appreciable risk that the Plaintiff will not be able to return the judgment sum to the Defendant should he succeed on appeal. These are the same grounds that he relies on to show that the appeal may be rendered nugatory.

10.  However, I see no reason why the Court should require the respondent (Plaintiff) to provide security for costs, especially when the grounds of appeal are not arguable. Also, the judgment sum is not the correct basis for assessing the amount of security.

E.  THE DEFENDANT’S APPLICATION FOR THE PLAINTIFF’S ACTUAL RESIDENTIAL OR CORRESPONDENCE ADDRESS

11.  Order 6, rule 5(a) of the Rules of the High Court (“RHC”) provides that a writ must be indorsed “where the plaintiff sues by a solicitor, with the plaintiff’s address and the solicitor’s name or firm and a business address of his within the jurisdiction…”. Hence, even if the plaintiff acts by a solicitor, (i) the plaintiff still has to provide his address and (ii) the solicitor’s address. This requirement is reflected on page 2 of the standard form writ in Appendix A of RHC. The purpose is to enable a defendant to correspond with the plaintiff when the plaintiff’s solicitor ceases to act; and to enable the defendant to decide on seeking security for costs if the plaintiff is a foreign plaintiff.

12.  The Plaintiff’s address does not appear on the writ in this case and is in breach of Order 6, rule 5(a). The concerns of the Defendant in paragraph 9 above with regard to the lack of the Plaintiff’s address on the writ are valid. I therefore direct that the Plaintiff do provide his address within 14 days of the handing down of this Decision.

F.  CONCLUSION AND COSTS

13.  The Defendant’s summons dated 28 October 2025 is dismissed for lack of arguable grounds of appeal. With regard to the Defendant’s summons dated 1 December 2025, I make an order for the Plaintiff to provide his address in accordance with Order 6, rule 5(a) of RHC, but otherwise dismiss this summons.

14.  Costs should follow the event. On a nisi basis, I order the Defendant to bear 90% of the Plaintiff’s costs for both Summonses, summarily assessed at $63,000. I make an order nisi accordingly.

15.  I thank Mr Kwan for his assistance.