CHINA CITIC BANK INTERNATIONAL LTD v. DURRANT SIMON PATRICK MICHAEL

CACV 127/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 127 OF 2014

(ON APPEAL FROM HCMP NO. 3196 OF 2013)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1. This is the defendant’s appeal against the decision of Chu JA on 21 July 2014 sitting as single judge (“Chu JA’s Decision”), by which his summons for stay of execution pending his appeal against the decision of Deputy High Court Judge S T Poon on 23 June 2014 (“DHCJ Poon’s Decision”) was dismissed. By DHCJ Poon’s Decision, his appeal against the Order of Master Leong dated 11 February 2014 (“the Order 88 Judgment”) was dismissed. He sought to stay, pending his appeal to the Court of Appeal, the Order 88 Judgment and the writ of possession and fieri facias combined issued pursuant thereto on 2 May 2014.

2. This is the fourth time the defendant has applied for a stay of the above pending his appeal.  He first applied to Master S Lo, who dismissed the application on 27 June 2014.  The second time was when he appealed against the Master’s dismissal to a judge of the Court of First Instance.  Deputy High Court Judge B Chu dismissed his appeal in a judgment handed down on 8 July 2014 (“DHCJ B Chu’s Judgment”).  The third time was when he renewed his application to a single judge of the Court of Appeal and the outcome was Chu JA’s Decision.  His appeal against Chu JA’s Decision to this court is his fourth attempt.

3. For the detailed procedural history, we refer to Chu JA’s Decision, §§2 to 14.

4. The defendant’s application for stay pending appeal, as he has indicated all along, is made pursuant to the Rules of the High Court, Order 59 rule 13(1)(a), Order 45 rule 11 and Order 47 rule 1.

5. The applicable legal principles have been set out comprehensively in DHCJ B Chu’s Judgment at §12(i) to (vi) and Chu JA’s Decision at §§15 and 16, no repetition is required.

6. The grant of a stay of execution pending appeal is an exercise of judicial discretion.  In accordance with established principles, an appeal against the exercise of judicial discretion would not be entertained unless it can be shown that the judge exercised the discretion under a mistake of law or in disregard of principle or under a misapprehension as to the facts, or that the judge took into account irrelevant matters or failed to take into account relevant matters, or that the exercise of discretion was plainly wrong.

7. The defendant filed a total of seven affirmations in the proceedings below prior to DHCJ Poon’s Decision.  After DHCJ Poon’s Decision, he filed a further five affirmations in the proceedings below and in the appeal proceedings in support of his application for stay pending appeal.  His last affirmation was filed on 5 August 2014.  In it, he raised yet another new argument to support his contention that the plaintiff’s calculation of his indebtedness was inaccurate.  He asked this court to summarily dismiss the plaintiff’s originating summons in the Order 88 proceedings, failing which he asked this court to stay pending appeal the Order 88 Judgment and the writ of possession and fieri facias combined.

8. It is entirely out of the question to dismiss the Order 88 proceedings summarily.  This is not the hearing of the substantive appeal against DHCJ Poon’s Decision and the Order 88 Judgment.

9. For the purpose of this hearing, he provided us a skeleton submission in which he laid emphasis once again on his point that the accuracy of the amount claimed by the plaintiff as outstanding was not established and that he was denied a fair hearing due to DHCJ Poon’s admission in evidence of the plaintiff’s third affidavit.  He also provided information on his recent health problems and urged the court to have regard to the hardship he would endure if he had to vacate his home.

10. We have considered carefully all the grounds of defence raised in the twelve affirmations filed by the defendant and the matters urged upon us in his skeleton submission.  For present purpose, it is not necessary to discuss and analyse closely the merits or otherwise of his substantive appeal premised on his various grounds of defence.  All that is required is a preliminary view on the strength of the substantive appeal.  As that appeal is yet to be heard, we do not think it desirable to say more about the merits save that we are in broad agreement with DHCJ B Chu (who considered each of the grounds of appeal in the Notice of Appeal in §§15 to 27 of her judgment) and Chu JA (who undertook a similar exercise in §§19 to 26 of her decision).  We think it would be unrealistic not to have regard to the indisputable fact that the defendant had defaulted in making repayment to the two mortgage loans since March 2011 and had only paid a few sums between April 2011 and June 2012, that a very substantial sum was due and owing to the plaintiff, and that it was a term of the mortgage if default should be made in payment of any money secured by the mortgage it should be lawful for the plaintiff to enter into and take possession of the mortgaged property.

11. We do not think the defendant has satisfied the minimum requirement in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 at §9(6) that there is in existence an arguable appeal with reasonable prospects of success.  As Ma J (as the Chief Justice then was) stated there: “In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted”.

12. There is no basis to interfere with the exercise of discretion in refusing a stay pending appeal in Chu JA’s Decision.  And we do not think Order 45 rule 11 and Order 47 rule 1 are engaged, for the reasons given in Chu JA’s Decision at §§29 to 31.

13. We dismiss the defendant’s appeal against that decision.  We order him to pay the plaintiff’s costs of this appeal, to be taxed if not agreed.