HCMP 887/2018
[2020] HKCFI 3172
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 887 OF 2018
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IN THE MATTER OF the Property known as ALL THAT one equal undivided 4th part or share of and in ALL THAT piece or parcel of ground registered in the Land Registry as Shek O Inland Lot No. 77 (Unit B (formerly know as Flat B) on the Ground Floor and parts (now known as Portions) on the Lower Ground Floor of No. 24 Shek O Headland (Unit B on Ground Floor & Portions on the Lower Ground Floor, No. 24 Shek O Headland, Hong Kong)
and
IN THE MATTER OF a Charging Order Absolute made against the Property under the High Court of the Hong Kong Special Administrative Region Court of First Instance Action No. HCA 1079 of 2015 dated 15th January 2018 and registered in the Land Registry by Memorial No. 18012500260010
and
IN THE MATTER OF Order 31, Order 50 Rule 9A(1) and Order 88 of the Rules of the High Court
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BETWEEN
ASPAROUH IANEV DIMITROV
Plaintiff
and
DOMINIC TAK MING LAU also known as
1st Defendant
ZHAO MENGWEI
2nd Defendant
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Before:
Deputy High Court Judge William Wong SC in Chambers
Dates of Hearing:
21 December 2020
Date of Judgment:
30 December 2020
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DECISION
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APPLICATION
1. By a judgment dated 28 September 2020 (the “Judgment”), this Court granted the Plaintiff an order for sale of the subject property and dismissed the 2nd Defendant’s summons to set aside the Plaintiff’s charging order absolute (the “Order”).
2. By a notice of appeal dated 22 October 2020, the 2nd Defendant seeks to appeal against the Judgment and the Order.
3. By a summons dated 9 November 2020 (the “Stay Summons”), the 2nd Defendant seeks to apply for a stay of execution of paragraphs 2, 3, 4, 5 and 8 of the Order (in relation to the order for sale of the subject property) pending the final outcome of the 2nd Defendant’s appeal to the Court of Appeal.
LEGAL PRINCIPLES AND ANALYSIS
4. The applicable legal principles for stay of execution pending appeal are well established. They are comprehensively set out by Ma J. (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at §§6-10. I do not propose to rehearse the same herein save for the present purpose, I note, first, the existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay and secondly , the court embarks on a balancing exercise and uses its common sense, but bearing in mind at all times that the starting point is that the successful party is not to be deprived of the fruits of his or her success without good reasons. See also SNE Engineering Co Ltd v Chim Kee Machinery Co Ltd , CACV 101/2016, unreported, 15 July 2016 at §§31-35 per Macrae JA (as he then was).
The existence of an arguable appeal
5. Having carefully considered the Notice of Appeal and the submissions of Mr Lam for the 2nd Defendant, I am of the view that there is no arguable appeal in the present case. First, Mr Lam for the 2nd Defendant fairly admits that the main thrust of the 2nd Defendant’s ground is that the matter should not have been disposed of summarily and the court should not have decided the outcome based on affidavit evidence alone . I do not see how this ground of appeal is open to the 2nd Defendant. First and foremost, the 2nd Defendant did not make an application for the matter to be dealt with by way of oral testimony of witnesses. Mr Lam who appeared before this Court did not make any submissions that this Court should not proceed to determine the applications based on the affidavits filed by the parties.
6. In fact, it was a consensus by the parties (and their counsel) at the substantive hearing that no oral testimony would be adduced (see §29 of the Judgment). The 1st Defendant in his skeleton submissions dated 17 September 2020 stated:
“ Paper Trial
11. The 1-day hearing that is scheduled before this Court on 21st September 2020 is to determine the Discharge Application [i.e. D2’s application to discharge P’s charging order absolute] and the Originating Summons. All parties have agreed that no viva voce evidence will be adduced in this paper trial. That being the case, any dispute on facts would have to be determined by this court by adopting the threshold of inherent probability…” (Emphasis added.)
7. Mr Lam for the 2nd Defendant during the substantive hearing did not adopt a different approach and participated in the hearing on the above agreed basis.
8. Further, Mr D’Souza is right that there were a series of directions hearing prior to the substantive hearing, and the very last one (i.e., the order of Madam Justice L. Wong dated 22 November 2019) was an order made by consent of all the parties. The 2nd Defendant did not raise any issue of calling oral evidence or that this matter is not suitable to be dealt with by the court without cross-examination.
9. Moreover, at any time during the course of the proceedings, the 2nd Defendant could have applied to adduce oral testimony, but she chose not to do so.
10. Fundamentally, this point that this Court should not determine the merits of this matter at the substantive hearing without calling oral evidence was never raised by the 2nd Defendant before and during the hearing. I do not see how the 2nd Defendant could say that this court erred in not considering a procedural point which she did not raise at all. I am not sure how the 2nd Defendant can get over the Flywin objection. Worse, she has positively agreed to have this matter determined without calling oral evidence.
11. Mr Lam for the 2nd Defendant submitted that he did submit, in his written submissions, that there are factual disputes. However, Mr D’Souza is right and quick to point out that the reference in Mr Lam’s written skeleton submissions to factual disputes is a far cry from the point that Mr Lam is now making, namely, this court erred procedurally in not calling oral evidence. I agree.
12. The fact is that all parties have agreed that no viva voce evidence would be adduced at the substantive hearing. This court was asked to determine the disputes of fact by adopting the threshold of inherent probability. I do not see how the 2nd Defendant can legitimately mount a complaint now that she has lost.
13. Hence, I do not see these procedural grounds of appeal have any merits. They are plainly unarguable.
14. The other grounds of appeal (there are a total of 16 grounds of appeal) raised by the 2nd Defendant, in effect, rehashes the failed arguments raised at the substantive hearing. Mr Lam for the 2nd Defendant submitted that the subject property is the 2nd Defendant’s matrimonial property. At paragraph 47 of the Judgment, this court noted that in the Petition for Divorce dated 11 June 2013, both Defendants confirmed that they cohabited together at 10th Floor, 107 Hennessy Road, Wanchai, Hong Kong (the “Wanchai Property”). The subject property, on the other hand, has been used for rental purposes from time to time.
15. Mr Lam for the 2nd Defendant, during the hearing, submitted that the Wanchai Property is in fact a commercial property and was not the matrimonial property of the Defendants. Mr D’Souza for the Plaintiff is right that Mr Lam cannot give evidence from the bar table and this is a new assertion that was not raised at the substantive hearing.
16. The key issue is that this court has already ruled that the 2nd Defendant has no beneficial interest in the subject property. This Court arrived at that conclusion, by reference to, amongst others, undisputed contemporaneous documents.
17. Mr D’Souza for the Plaintiff is also right that it is the 2nd Defendant who has the burden to demonstrate to the court that she has beneficial interest in the subject property but she failed to do so.
18. In the circumstances, I am of the view that the 2nd Defendant has not even demonstrated to this Court that she has an arguable defence.
19. As such, there is no need for this Court to engage in the balancing exercise.
20. I also do not consider it necessary to consider the issue of a conditional stay.
DISPOSITION
21. For all the reasons stated above, the 2nd Defendant’s Stay Summons is dismissed.
22. This court summarily assesses the costs of the Stay Summons at HK$90,000. The said sum is to be paid by the 2nd Defendant to the Plaintiff forthwith.
23. Finally, I thank Mr D’Souza for the Plaintiff and Mr Lam for the 2nd Defendant for their helpful assistance.
(William Wong SC)
Deputy High Court Judge
Mr D’Souza, instructed by, Boase, Cohen & Collins for the Plaintiff
Mr Andy Lam, instructed by Ivan Tang & Co., for the 2nd Defendant