ACE LIFE INSURANCE CO LTD v. LIN MAN CHI ANDY

CACV 78/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 78 OF 2012

(ON APPEAL FROM HCA No. 895 of 2009)

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REASONS FOR DECISION

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Hon Cheung JA (giving reasons for decision of the Court):

1.  The defendant applied for stay of execution of the judgment of Deputy High Court Judge Burrell pending his appeal against that judgment. We refused the application for the following reasons.

2.  The defendant had previously applied to Deputy Judge Lok of the Court of First Instance for a stay of the judgment.  Judge Lok refused the application.

3.  In our view the application has no merits.  A successful party must not be deprived of the fruits of litigation unless there are good grounds.  A fundamental requirement is that the defendant must show there is a reasonable prospect of success of his appeal.  The judgement of Judge Burrell focused on the interpretation of Clause 5.1 of the Agency Agreement.  He upheld the plaintiff’s interpretation. The evidence of the plaintiff’s witness, Mr. Tang, merely provided the factual context for the purpose of construing Clause 5.1.  The defendant has not been able to show that Judge Burrell was wrong in his judgment.

4.  The plaintiff has now served a statutory demand on the defendant based on the judgment.  The defendant said that he does not have sufficient money to repay the plaintiff and if he was declared bankrupt he may not be able to fulfil the ‘fit and proper person requirement’ in the Code of Practice for the Administration of Insurance Agents and he may not be able to work as an insurance agent which he has done for the past 21 years.  In applications of this type, the essential consideration is the merits of the appeal.  Since this is lacking, we refused the application with costs to the plaintiff.