HSBC PRIVATE TRUST (HONG KONG) LTD v. AU YEUNG CHUNG

CACV 69/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 69 OF 2008

(ON APPEAL FROM HCA NO. 1662 OF 2001)

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D E C I S I O N

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1.  This is a second application for stay pending appeal which has come before me in this case.  The first one was in relation to the order for possession.  This is in relation to an application in respect of the order for mesne profit.  That came before the judge who heard the case in October of this year and he refused the stay.  The amount of mesne profits has been calculated at $2,756,800.

2.  There are two matters which were very briefly gone into today.  The first is the question of merits of the appeal and the second is what would be the effect if a stay was refused, they seem to me to be important matters.  Of course, on the question of a stay, the matter of merits, cannot be gone into fully.

3.  When the matter came before me last time, it seemed to me that the detriment to the defendant if a stay was refused was likely to be minimal because the land was not being used and the defendant could easily be compensated if the order had wrongly been put into effect and the land had been sold.  On that occasion I said, without I think going into the matter at all, that I proceeded upon the basis that the defendant had an arguable case on the appeal.  I did so partly because of the merits of the appeal had not been gone into.

4.  I have gone into the merits very briefly this morning and considered two cases which were referred to by counsel.  What I will say this morning is I have difficulty in following the argument based on those cases because they do not seem to be authority for the wide proposition for which they were prayed in aid.

5.  In this respect I would say that the judge made a very thorough assessment of the facts in his original judgment in January and came to firm conclusions.  It seems to me that there will be considerable difficulty in seeking to overturn those conclusions in this court.  One matter which I would observe is that an affidavit for the purposes of a stay has been put before the court by the defendant, but at the trial the defendant chose not to give evidence.  So I doubt in those circumstances that when the matter comes to an appeal this court would be prepared to admit any evidence from the defendant because the defendant chose not to give evidence at the trial.

6.  Having briefly considered that, probably it is fair to say that if this appeal does have any chances, that it will be a difficult appeal from the point of view of the defendant and I will leave it at that.

7.  I then look to see whether a stay should be granted of the order for mesne profits.  The sum involved is substantial.  I think there is no doubt about it, that neither the defendant nor probably with the help of offspring who seem to be fairly numerous, could that sum be afforded.  In those circumstances, had other things been equal, the position might have been that it could be said that without the stay the appeal would be stifled.

8.  But in this case the defendant has legal aid.  I have enquired of counsel what the effect would be if a stay were not granted and the worst came to the worst the defendant were made bankrupt.  I suspect that in any event this appeal will probably come on for hearing on 10 and 11 February before the defendant could be made bankrupt, because these things do not happen overnight.

9.  It seems that it would be in the discretion of the Official Receiver as to whether the proceedings would be allowed to continue.  In view of the fact that the defendant has legal aid, it also seems that it would be quite likely that the Official Receiver would not be concerned about the effect on the estate should this appeal proceed and not succeed.

10.  In those circumstances, it seems to me that the conclusion of the judge below was correct and I should not grant a stay.  The grounds for granting a stay do not exist.  I therefore refuse the stay on the application that is made today.

(Discussion re costs)

11.  Stay refused, with costs.