Lo Yuk Leung v. Las Vegas Hilton Corporation

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

Civil Appeal No. 251 of 1997

(On appeal from Court of First Instance
Action No. A8739 of 1997)

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Reasons for Decision

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1. This is an application for a stay pending appeal from a decision of Mr Justice Findlay, which was handed down on 28 November. An application for stay was made before him on 15 December. A 31-page transcript of the argument before him on 15 December has been produced to me this morning. As far as I can see it was a waste of resources, time and effort to produce this transcript since it was merely of oral argument.

2. The basis of the appeal of the stay application is that the defendant, who is resident in Hong Kong - and there is no suggestion otherwise - wishes to stay the action of the Las Vegas Hilton Corporation which has been brought against him on the basis of forum non conveniens.

3. The defendants took out a summons, which was originally heard in front of the Registrar. That came on, apparently, for hearing at the same time as an order 14 application by the plaintiffs. The Registrar took what I thought was a sensible course. He said he was going to get on with the case and he was not going to allow these applications to slow things down. He said he would hear the stay application first, but the parties would have to be ready for the order 14 application immediately thereafter.

4. The matter then went to appeal because the defendant appealed. The plaintiff did not appeal in time. But the defendant appealed in time, and the judge below considered that he had to look at the whole thing as one. Mr Huggins, S.C. on behalf of the defendant, strongly urges that the judge had no business to consider the question of the appeal in relation to the stay application because, he says, the appeal was out of time and no reasons were given for the appeal being out of time.

5. In my view, there is a strong argument that the judge below was correct: he was seized of the matter; he was entitled to look at the whole matter in the round; he found no evidence from the defendant which supported a stay application and, therefore, he dismissed that stay application and told the parties that he was going to hear the order 14 in early January.

6. Mr Huggins, on behalf of the defendant, says that, if there is no stay, his appeal in relation to the judge's dismissal of the stay application would be rendered nugatory. He goes on to say that he would be prejudiced because the defendants would have to put on oath what their defence is. That would have two effects, according to him: first, it would give the plaintiffs an advantage if and when the proceedings are heard in the United States; and, secondly, it may prejudice his ultimate stay application.

7. My view is that, in the present circumstances, if his appeal is successful, he will have his stay. His appeal will not be rendered nugatory, and maybe any costs thrown away by the plaintiffs in the meantime will have to be paid. That is a matter which the court will have to decide when it hears the appeal.

8. I cannot see that having to file evidence now in these circumstances could be prayed in aid by a plaintiff as having prejudiced his stay application. The suggestion that a defendant who has to put his defence on oath will be prejudiced is not an argument which I propose to deal with further. This application is refused.

MR HOUGHTON: My Lord, we ask for the costs, please.

MR HUGGINS: I can't resist that, My Lord.

MR HOUGHTON: I wonder whether Your Lordship would make it -- there's presently a direction that the evidence be filed by 4.15 today. I wonder whether any direction can be given that that be treated as a final deadline.

MR HUGGINS: My Lord, in my respectful submission, that would not be an appropriate thing to do. An order has been made, and any such application for an unless order ought to be made to the High Court and not to the Court of Appeal.

COURT: Yes, I will leave that to the judge below to do.