XCHRX CHENG LAI HEUNG AND ANOTHER v. CHEUNG KIN AND ANOTHER

HCA 7356/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7356 OF 2000

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D E C I S I O N

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1. The plaintiffs commenced this action to recover from the 2 defendants what the plaintiffs allege to be ransom money paid to the kidnappers of the 1st plaintiff.

2. This is the 1st defendant's ("D1's") application for the payment out of $1.5 million (alleged by the plaintiffs to be part of the ransom money) paid into Court by him earlier. About half an hour into the hearing of that application, D1's counsel asks for an adjournment of the application sine die with liberty to restore. Four reasons are given in support of the application to adjourn:

(1) D1 wants to find out whether the plaintiffs have in fact recovered the ransom money from the mainland police. As stated earlier, the said sum of $1.5 million was alleged in this action to be part of the ransom money;

(2) D1 wants to find out if the plaintiffs have in fact commenced a civil claim against the arrested kidnappers in the mainland;

(3) D1 wants to find out when the plaintiffs first knew of the kidnappers' arrest and the recovery of the ransom by the mainland police;

(4) D1 wants to deal with the letter dated 3 April 2001 from the Hong Kong Police stating that he was not a registered remittance agent or a registered money changer.

3. The matters put forth in points (1) and (3) above are matters which D1 could (and should) have dealt with earlier. As regards the matter referred to in point (2) above, I do not consider it to be relevant to the application for payment out. The matter referred to in point (4) is a point possibly relevant to the issue of the risk of dissipation of assets. The main issue in this application, as D1's counsel confirmed in the course of his submissions before his application to adjourn, is whether the plaintiffs can establish a good arguable case that the $1.5 million is part of the ransom money. The other issues would include question of "balance of convenience", alleged material non-disclosure by the plaintiffs and alleged delay in the conduct of these proceedings by them.

4. Plaintiffs' counsel indicates that the plaintiffs will be prejudiced by the adjournment if they are not awarded the costs thrown away by it. D1's counsel argues that those costs should be in the cause of this application.

5. Having regard to the circumstances (set out above), I consider that the adjournment sought is not caused by the Plaintiff's fault. The right course to adopt is therefore to allow the application for an adjournment but order that the costs thrown away by today's adjournment be paid by D1 to the plaintiffs.