HUNG SAM INDUSTRIAL MANUFACTORY LTD v. YAU CHI KWAN formerly t/a TUNG SHING TRADING CO

HCA 1869/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1869 OF 2007

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J U D G M E N T

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1.  On 8 January 2009 Recorder A. Ho granted summary judgment in favour of the plaintiff against the defendant in the sum of RMB ¥1,447,673.20 being part of the claims included in the statement of claim with interest on the said sum at the rate of 1% above HSBC’s prevailing best lending rate from time to time for the period from the date of the writ to the date of the judgment, and thereafter at judgment rate until payment.  He also ordered half of the costs of the summary judgment application to be paid by the defendant in any event.

2.  There are two sums of money paid into court which belong to the defendant. 

3.  The first sum of payment was $800,000 which was made after the injunction granted by A. Cheung J on 13 March 2008.  The notice of payment into court is dated 19 May 2008 in respect of that $800,000.  The $800,000 was in respect of 50% of the net proceeds of sale of Flat 1, 13^th Floor, Hong Kiu Mansion, No. 313 Nathan Road, Kowloon which belonged to the defendant and his wife.  A. Cheung J ordered that the order be made should remain in force unless the defendant paid the sum of $800,000 into court.  That he has now done by the payment in on 19 May 2008.

4.  On the return day of the ex parte order granted by A. Cheung J the defendant undertook to cause his solicitors to pay another sum of $800,000 out of the proceeds of sale of another property located on the 12^th Floor of Hong Kiu Mansion.  Payment of the $800,000 referred to in that undertaking was made by a notice of payment into court on 1 April 2008.

5.  Thus, there is a total of $1,600,000 which are funds in court belonging to the defendant.

6.  On 2 March 2009 Master Ko ordered that unless sufficient cause to the contrary be shown before the Registrar on 27 March 2009, the defendant’s interest in the two sums of $800,000 paid into court shall stand charged with the payment of the judgment debt together with costs of the application. 

7.  The judgment in favour of the plaintiff far exceeds the funds paid into court as is clear from the charging order nisi. 

8.  The defendant has not filed any affidavit to show cause.  Instead, at the hearing today he has handed up to the court a document which is an application for leave to appeal in miscellaneous proceedings.  Belatedly he had decided to appeal against the judgment of Recorder A. Ho given on 8 January 2009.  I understand that a hearing is scheduled for 2 June 2006 before a judge of the Court of Appeal.  However, there has been no application for a stay of execution of the judgment and even if the defendant applies for a stay of execution there is nothing in papers before me to show that in the event (1) that the defendant gets leave to appeal out of time; and (2) that he succeeds in the appeal, the plaintiff would not be able to repay the money that it seeks to obtain by enforcement by the charging order. 

9.  In the circumstances, it seems to me that it is only right and proper that the charging order should be made absolute and I so order.

[After hearing submissions]

10.  I give leave to the plaintiff to amend the charging order nisi by deleting the date ‘19^th March 2008’ in paragraph (1) of the Schedule and substituting therefor the date ‘19^th May 2008’.  I order that the amended charging order nisi should be made absolute.  I also order that the costs of the application are to be costs to the plaintiff.