NG YAT CHI AND ANOTHER v. CHINA RESOURCES (HOLDINGS) CO LTD AND OTHERS

HCA 424/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 424 OF 2005

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J U D G M E N T

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This is an application by the 1^st, 2^nd & 3^rd Defendants to make a charging order nisi absolute.  The charging order is on certain property of the 2^nd Plaintiff to secure him to pay the costs awarded and taxed in a sum of $266,072.00.  The application first appeared before me on 28 June 2006 and the 2^nd Plaintiff opposed it.  I gave direction that the 2^nd Plaintiff filed and served an affidavit in opposition, which he did on 18 July 2006.

2.  The poiznts raised in the Affirmation are as follows:

(a) The order awarding costs to the Defendants had been wrongly made by Cheung J on 12 August 2005.  An appeal is pending.

(b) What Cheung J said in Court were different from those contained in the judgment and transcripts.

(c) The 2^nd Plaintiff has written to the Chief Justice.

(d) The 2^nd Plaintiff has also written to President Hu Jintao in China.

3.  I do not see any relevance of these points in the context of opposing an application to make a charging order nisi absolute.  The application is a measure to enforce the judgment obtained by the defendants.  As long as the judgment is valid and its effect has not been stayed, I have to grant leave to enforce it.

4. At the hearing on 16 August 2006 the 2^nd Plaintiff raised further points.  He argued that the order or judgment is not a final judgment or order.  He cited a commentary in Section 50/9A/19 of the Hong Kong Civil Procedure 2006 which states:

“The conditions prerequisite to the right to a charging order are (a) there must be a final judgment or order (b) under which the debtor is required to pay a sum of money (c) to another person, i.e. the creditor”

He submitted that the judgment or order made by Cheung J on 12 August 2005 arising out of an application to strike out is an interlocutory judgment and not a final judgment.  It fails to fulfill the 1^st requirement and no charging order should be made against his property.

5. I must say that the learned editor of the Hong Kong Civil Procedure uses the word “the final judgment” in the ordinary sense of the words.  He is not using it in the context of its well defined meaning of “the final judgment” as contrasted to “the interlocutory judgment” in a number of decisions of the Court of Final Appeal and the Court of Appeal.  As we read further down the passage in Section 50/9A/19, we understand the phrase “final judgment or order” in that section means orders with specific sums.  It does not cover those orders or judgments where the bill of costs have not been taxed or damages have not been assessed etc.  I regard the judgment and order made by Cheung J with the amount of costs being ascertained is a final judgment and order for the purpose of charging order application.

6. The 2^nd Plaintiff also argued that his appeal against Cheung J’s judgment is still in progress, though in respect of the 4^th Defendant/Respondent only, and yet the Court of Appeal decision will affect the 1^st, 2^nd and 3^rd Defendant/Respondent.

7. As I understand from Mr. Fung, solicitor for the three Defendants, originally the Plaintiffs had also appealed against the judgment made Cheung J in favour of the three Defendants.  However, the Plaintiffs failed to provide security for costs of the appeal in the sum of $200,000 within the time limit or at all as ordered by Mr. Justice Yeung JA on 22 December 2005.  The appeal in respect of the three Defendants was accordingly dismissed.

8. It is not right at this stage for me to pre-judge or surmise whether a favourable result in the appeal in respect of the 4^th Defendant only will also lead to an overturn of Cheung J’s judgment in favour of the 1^st, 2^nd and 3^rd Defendants.  I have in my hand a judgment and an order which is valid and has not been overturned.  Further, the effects of the judgment and order have not been stayed.  In fact, no such application has been made.

9. I see no reason for opposing the application.  Accordingly, I make the charging order nisi absolute.

10. As to costs, I adopt the principle of costs following the event.  I make an order nisi under Order 42 rule 5B(6):

(a) That the costs of the 1^st, 2^nd & 3^rd Defendants in respect of this application (including all costs reserved) shall be borne by the 2^nd Plaintiff to be assessed by me with the following directions:

(i) That the 1^st, 2^nd & 3^rd Defendants shall at least 21 days before hearing of the assessment file and serve a Statement of Costs in the form contained in the Law Society’s Circular No. 06-2;

(ii) That the 2^nd Plaintiff shall within 14 days thereafter file and serve a list of objections, if any;

and (iii) That a date be fixed for hearing of the assessment with an estimated length of half an hour.

(b) That this order shall become absolute 14 days after the date of this Judgment unless a written application has been made to vary this order within the said 14 days.