XCHRX TULLETT & TOKYO INTERNATIONAL SECURITIES LTD. v. APC SECURITIES CO. LTD.

HCA12467/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.12467 OF 1997

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J U D G M E N T

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1. This is an application by the defendant seeking a stay of execution pending appeal with the proposal to pay money, the subject matter of the judgment, into court.

2. At the beginning of the hearing today, there is a question as to whether the hearing today should be adjourned because the plaintiff had issued garnishee proceedings against the sum of money that was held by the defendant's solicitors and because the plaintiff said that in any event they need time to answer the affidavits which had been filed just shortly before today's hearing.

3. In my view, there is really not a case for adjournment because the matter seems to me to be fairly clear. The basis of the application of the defendant is that there is a proposed appeal and the plaintiff is winding down its business in Hong Kong. Therefore, the money that would be paid might be subject to risk of non-recoverability, and hence the application.

4. It seems to me that this is a case, in the circumstances, which does not call for any interference of the court. The plaintiff is a substantial concern. They are certainly very substantial in London and had been there for a long time. They may be winding down in Hong Kong but that does not mean that by the time the appeal is heard, they would be out of Hong Kong. Even if they are out of Hong Kong, that does not mean that whatever order made by the Hong Kong court will not be complied with by the plaintiff.

5. So, I think, that really is the short answer to the application. It is also said that the appeal involves a point of law of great concern to the security industry and that the appeal is likely to be expedited. Whether the point is of concern to the security industry is debatable in the sense that there is uncertainty, but I noted that the SFC is certainly not before me, or seeking to be joined, or asking that the point be decided by the Court of Appeal urgently. I do not think the matter is urgent at all, the point has been there for a long, long time. Hong Kong had seen grey market that had been active for a long time without being the subject of urgent decision by the court. I do not think the Court of Appeal would even grant leave for the hearing to be expedited. There may be points of law involved, but that is what we see everyday in our courts. There is nothing in the circumstances of this case which suggests that the execution of the judgment would have to be stopped because there is a proposed pending appeal. In my view, this is not a case where the court should exercise its discretion to stop the plaintiff from receiving the fruit of the judgment.

6. The application is therefore refused with costs to the plaintiff which I would now assess summarily by way of gross sum assessment.