CACV 195/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 195 OF 2010

(ON APPEAL FROM HCMP NO. 1760 OF 2009)

________________________

________________________

________________________

1.  This is an application for a stay pending the appeal. I have not gone into the merits of the matter today simply because this is a strikeout application and matters may not be crystalised by the time of a strikeout application. First of all, the person who has drafted the pleadings may see that certain things also need to be pleaded; they may seek to amend their pleadings. We have had cases which go up to the Court of Final Appeal on pleadings and then, suddenly, people think of another way of arguing something, rightly or wrongly.

2.  On a stay application, the most important thing as far as I am concerned is to see where the balance of convenience lies.  If one party says that, if there is no stay, they are going to be prejudiced and the other side cannot show a prejudice but just says that the appealing party has no merits, it seems to me that the balance of convenience must lie with the person who wants the stay.  Unless the person in respect of whom the matter is going to be stayed can show that there is some prejudice, or there is going to be some difficulty, it seems to me that there should be a stay pending appeal.  It is not for me, as a single judge of the Court of Appeal, to take a decision that there is no merit; that really must be taken by three judges.  As I say, the matter might even go to the Court of Final Appeal.

3.  So, I propose to grant the stay that is sought.

(Submissions on orders)

4.  Order of 13 August stayed.

(Submissions on undertaking)

5.  The plaintiffs are prepared to give an undertaking to prosecute the appeal with reasonable dispatch.  Costs in the appeal.  Certificate for two counsel.