Asparouh Ianev Dimitrov As Administrator of the Estate of Kaloian Ianev Dimitrov (Deceased) v. Dominic Tak Ming Lau also known as Lau Tak Ming

CACV 266/2017

[2018] HKCA 652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 266 OF 2017

(ON APPEAL FROM HCA NO. 1079 OF 2015)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.The defendant seeks leave to appeal to the Court of Final Appeal against the decision of this Court (Cheung and Chu JJA) of 15 June 2018 by which we ordered stay of execution of the judgment against the defendant until the determination of his appeal conditional upon him paying into Court US$12 million within 21 days. This sum is part of the judgment sum of US$24,180,000 which the defendant had admitted that he would pay to the plaintiff as the first instalment payment. We will deal with the application on paper.

2.The application is based on both limbs of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484).  In respect of the great general or public importance limb, the questions are formulated as follows :

‘ In a case where there is a foreign and nominal plaintiff, who acts as administrator of the estate of his late brother, the former plaintiff, should the Hong Kong court adopts rigidly the test laid down in Star Play Development Ltd. v Bess Fashion Management Co. Ltd. [2007] 5 HKC 84, namely, whether it renders the appeal nugatory if stay is not granted :

(1)     What is the applicable legal principle for a stay application in the present factual matrix whereby the plaintiff is bound to distribute the judgment sum to a group of unknown overseas beneficiaries [paragraphs 2 and 3 of the judgment];

(2)     Whether it is correct for the Court of Appeal to proceed on the basis that the defendant/applicant only has a ‘reasonably arguable appeal’ without ventilating the merits of the prospective appeal of the defendant in the context of a summary judgment Order 14 appeal [paragraph 5 of the judgment]; and

(3)     Whether the Court of Appeal exercised its discretion wrongfully in failing to consider certain material facts of the case, in particular in deciding the quantum of the condition by ordering the defendant/applicant to make US$12 million payment into Court as the condition of the stay without considering the defendant is a Hong Kong resident with substantial assets in Hong Kong and such condition would have a serious deleterious effect on the defendant/applicant’s financial position.’

3.In our view the questions are not reasonably arguable.  The defendant is seeking to challenge an interlocutory judgment based on the exercise of discretion in respect of well‑established principles on stay of execution pending appeal and the basis for granting leave to appeal.  We see no proper basis for a review of these principles.  Further, the application of these principles in the present case is fact specific and the great general or public importance ground is not engaged.  Apart from the suggestion that the defendant may be in financial ruins if he is required to pay money into Court, no evidence has been put forward to substantiate this claim.

4.In respect of the ‘or otherwise’ ground, the defendant argued that ‘the applicable legal principle would concern a large number of losing litigants having sizable assets in Hong Kong whilst the winning party is a foreign and nominal plaintiff and is bound to distribute the judgment sum to certain overseas beneficiaries, the extent of which will impact Hong Kong as an international financial centre and will have far reaching effects thereon, rendering this an application fit for leave under the ‘or otherwise’ ground.’

5.The practice of this Court is to defer to the Court of Final Appeal to decide whether a case falls within the ‘or otherwise’ ground.  In any event in our view this ground is again not engaged having regard to the threshold requirement for this point to be argued.

6.Accordingly the application is refused with costs to the plaintiff.

Mr Robin D’Souza, instructed by Boase, Cohen & Collins, for the plaintiff

Mr George Chu, instructed by Tanner De Witt, for the defendant