CHONG FAI TING FRED v. SZE KAI LUNG AND ANOTHER

HCA 2007/2018

[2019] HKCFI 2503

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2007 OF 2018

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DECISION

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1.  By his Amended Statement of Claim filed on 24 April 2019, the plaintiff (“P”) claims against the 1^st defendant (“D1”), amongst others, 3 loans in the total sum of HK$41,070,000. By Summons filed on 9 April 2019, P sought summary judgment against D1 for the 3^rd Loan in the sum of HK$650,000 (the “3^rd Loan”). On 2 August 2019, after a contested hearing, Master KW Wong granted the application (the “Summary Judgment”). On 13 August 2019, D1 filed his Notice of Appeal against that Summary Judgment. On 14 August 2019, D1 filed a Summons for an order that the execution of the Summary Judgment be stayed pending his appeal. This is the hearing of that application for stay.

2.  On the applicable legal principles, I have considered the cases cited by Mr Wong, counsel for D1, to me.  I have in particular considered Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84.

3.  On the merits of the appeal, I warn myself that it is impracticable for this Court to go into merits in any depth.  I can at this stage only form a preliminary view on that question.  I have for that purpose considered the pleadings and affirmatory evidence before me.  I have in particular considered D1’s Amended Defence, and his two affirmations of 8 July 2019 and 13 August 2019 (“D1#1” and “D1#2”).  I observe that his case as elaborated upon in D1#1 was inconsistent with his contemporaneous conduct of (1) having acknowledged receipt both in the relevant Provisional Sale and Purchase Agreement and in the Assignment of the sum of HK$4 million, and (2) the fact that he had signed a note (the “Note”) acknowledging the 3^rd Loan.  I note also the inconsistency between his pleaded defence (that he denied having signed the Note) and the version he gave in D1/#1 (that he was persuaded by P to sign the Note as P told him that “he needed something to show it to his wife that he needed the money not for himself but to help me”).  In my view, which is I repeat necessarily a preliminary one, D1 has not demonstrated that his appeal has reasonable prospects of success.

4.  On whether the absence of any stay would render an appeal nutagory, D1 said at §§12 and 13 of D1/#2 that:

“12.  Further, a great portion of my assets are invested in artefacts which are rare and unique in nature, if [P] enforces the judgment now I would therefore have to liquidate my artefacts. The artefacts are difficult to sell and difficult to purchase back as the market is not very active, it is difficult to find a buyer and it is likely that I would need to pay more in order to purchase back after a successful appeal. If I engage an agent to arrange a buyer for my artefacts it will cause unnecessary costs being wasted on agent’s commission. Therefore, enforcing the Order will prejudice my financial circumstances.

   13.  Accordingly, the appeal would be rendered nugatory if a stay is not granted…”

5.  P said “a great portion of my assets are invested in artefacts”.  But what are they?  What financial loss he says he would suffer if there were to be an urgent sale?  How about the rest of his assets that are not artefacts?  No accounts of any sort have been produced.  Why would the conclusion at §13 (that “the appeal would be rendered nugatory”) follow from what he has claimed at §12?  These are the immediate questions that D1 has failed to deal with.  There are more.  What D1 has said at §§12 and 13 of D1/#2 are nothing but his bare assertions.   

6.  In the circumstances, I have no hesitation in refusing the application. 

7.  I will hear parties on costs.

8.  Having heard the parties on costs, I summarily assess P’s costs at HKS15,000, to be paid by D1 within 14 days.