Case Document

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HCA 585/2019

[2026] HKCFI 4798

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 585 OF 2019

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BETWEEN

	SUN HENG (吳易文)	Plaintiff
and
	TE THENG (沈騰璋)	Defendant

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Before:

Hon Mimmie Chan J in Chambers (open to public)

Date of Hearing:	21 August 2026
Date of Decision:	25 August 2026

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D E C I S I O N

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1.The Defendant applies for stay of execution of the Judgment and Order of this Court issued on 28 January 2026 (“Judgment”), pending the final determination of his appeal against the Judgment.

2.The principles governing such an application are not in dispute. They are as set out in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84, and summarized at paragraph 20 of the judgment in Fung Shing Chung v Choi King Hung [2024] HKCA 1021. In essence, the applicant for stay must demonstrate a good reason for a stay of execution. The existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay, but is the minimum requirement before the court would even consider granting a stay. As the Defendant emphasized, the existence of a strong appeal or a strong likelihood of success would constitute a good reason for a stay of execution and will usually by itself enable a stay to be granted. However, in most cases, where the court is faced with simply the existence of an arguable appeal, it is necessary for the applicant to provide additional reasons as to why a stay is justified, for example, that the appeal would be rendered nugatory in the absence of a stay. The court must form a preliminary view of the merits or strength of the appeal in considering the application for stay.

3.Although it was emphasized by Counsel for the Defendant that his appeal carries a strong likelihood of success, and that this alone constitutes a sufficient reason for a stay to be granted, having duly considered the grounds of the intended appeal and the submissions made by Counsel, I am not satisfied that the Defendant has met the high threshold required. As Counsel for the Plaintiff highlighted from the judgment of Cheung JA in Fung Shing Chung, for there to be a strong appeal, “the situation must be one which would lead the Court to conclude that something has grievously gone wrong with the process of law in the Court below, or that the appellant is ‘almost bound to succeed’. Absent such a case, something more needs to be demonstrated.”

4.The high threshold required was emphasized in the most recent decision of the Court of Appeal in Yip Sau Ching and others v Yip Che Shing and others [2026] HKCA 1443. At paragraph 5 of the judgment of Hon Kwan VP, Her Ladyship observed:

“5. The above challenges are against findings and inferences of fact of the trial judge. The appellate process is not designed to give litigants a platform for repeating unsuccessful submissions on the evidence and factual aspects, hoping that the appellate judges might be persuaded to come to a different view. Having sat through the entire case, the insight of the trial judge may well be far deeper than that of the appeal court, whose view of the case is much more limited, often shaped or narrowed by the focused challenges on appeal to particular issues or aspects of the evidence.

6. The rationale of the legal requirement of appellate restraint on issues of fact is not just the advantages which the trial judge has in assessing the credibility of witnesses. It is the trial judge who is assigned the task of determining the facts, not the appeal court. The reopening of questions of fact for redetermination on appeal would expose parties to great cost and divert judicial resources for what would often be negligible benefit in terms of factual accuracy. The trial on the merits should be the “main event” rather than a “tryout on the road”.

7. In his case, the judge sat through a trial of 18 days. His ultimate judgment reflects his total familiarity with the evidence. The insight he gained from the experience of seeing how the contest unfolded would be far deeper than the members of this court. Even reading the transcripts at length cannot give the appeal court the same immersion in the atmosphere of the trial. It is also important to bear in mind that findings of fact by the trial judge are inherently incomplete statements of the impression made upon him.”

5.I agree with the Plaintiff, that the submissions made for the Defendant on the intended appeal and its merits are in substance rearguing the Defendant’s case or repeating the submissions made on closing at the trial, as to why the Court should accept the Defendant’s case as opposed to the Plaintiff’s, with regard to the Remittances referred to in the Judgment. The conclusions made in the Judgment were based on this Court’s assessment of the credibility of the witnesses, the reliability of their testimony in court, and the preference of the Plaintiff’s evidence over the Defendant’s, having heard their evidence in court, examined the contemporaneous documents produced, and the explanations on the documents as given by the witnesses. In essence, what the Defendant seeks to do is to invite the Court of Appeal to weigh the evidence differently, draw a different inference from the same documentary evidence, and come to an opposite conclusion regarding the source of the Remittances. That is not permissible.

6.As Counsel for the Plaintiff pointed out, the Court had explained at paragraph 14 of the Judgment, as follows:

“ The courts have further acknowledged that witnesses’ evidence in court of their recollection of events is often unreliable, due to the nature and defects of human memory. This is particularly so on the facts of this case and in the context of the witnesses involved. Both Parties are of advanced age, and their recollection of events and figures compiled in 2004 to 2011 cannot be expected to be clear or reliable. The evidence of both the Plaintiff and the Defendant can, at best, be described as vague. On particular aspects, their evidence is either evasive, or incoherent, or unclear. Contemporaneous documents prepared before the contemplation of hostile proceedings are in the circumstances of this case more reliable than the evidence of either of the two protagonists.”

7.This Court ultimately concluded that the Defendant’s sweeping statement, that the Remittances were the Defendant’s own funds, was not made out. It was also on the consideration and assessment of the credibility of the witnesses and the inherent probability of their respective case that this Court found that the Defendant had not adduced sufficient evidence to establish a prima facie case that the Remittances were his own money, and that the Plaintiff’s case had been proved by the Remittances, and by the Defendant’s own Notes. I am not persuaded that it can be shown that it was impermissible for this Court to make the findings of fact and to draw the inferences of fact in the light of the evidence at trial as a whole. The Court’s preference for the Defendant’s Notes over the incomplete ledgers of the French Companies, and the conclusions of fact reached, are reasonably open to the Court to make on the evidence available.

8.In all, even if I should accept that the Defendant’s appeal is arguable on the grounds relied on, I am not satisfied that the strength or merits of the intended appeal as a whole are such as to constitute a good reason for a stay.

9.I reject the proposition that there are any special circumstances which justify the grant of a stay of execution.

10.I accept the submissions made by Counsel, that the starting point is that the Plaintiff should not be kept out of the fruits of the Judgment.

11.The orders made under the Judgment are not for immediate payment of any sum, but for accounts to be given by the Defendant. I accept the submissions made for the Plaintiff that the accounting exercise ordered in this case is not complicated, as there are already clear and meticulous records made in the Defendant’s Notes, of how the money received had been used, and the amounts involved.

12.In Tang Ying Loi v Tang Ying Ip Alias Tang Ying Yip and ors (unreported, HCA 2487/2009, 14 April 2015), the Court held that a stay will not readily be granted merely because the accounting exercise ordered (and which was under appeal) would require time, cost or inconvenience. That case involved a much more complex and fact-heavy exercise involving discovery and expert evidence, but the Court still considered that the risk of wasted or irrecoverable costs cannot by itself justify a stay of execution pending appeal, as such risk is simply inherent in our system of litigation.

13.I cannot see how the Defendant’s old age and alleged ill health can constitute a special circumstance to justify a stay of execution. The Defendant does not allege that the Appeal would be rendered nugatory. The accounting ordered to be given for the proceeds of sale and the cash remaining cannot be considered “irreversible”. As Counsel for the Plaintiff rightly pointed out, there is no logical connection between the Defendant’s health concerns and any detriment he may suffer as a result of having to account for the sale proceeds of the HK Properties.

14.The date for the inquiry for the accounts has not even been fixed. The ill health and advanced age of the Defendant in fact suggests that the accounting should be given before his health deteriorates any further. As submitted for the Plaintiff, he is likewise of advanced age and the dispute should be dealt with and concluded expeditiously, and the Plaintiff should not be indefinitely kept out of the fruits of the Judgment.

15.I also reject the claim that the accounting should be delayed for any privacy reasons. Counsel for the Plaintiff rightly pointed out that disclosures had already been made in the course of these proceedings of extensive bank statements personal to the Defendant and to his wife.

16.For all the above reasons, I decline the grant of the stay of execution. The summons for stay is dismissed, with costs to be paid by the Defendant to the Plaintiff, to be summarily assessed.

17.The parties are directed to agree on the timetable for the exchange of the statement of costs and of objections, for the assessment to be dealt with on papers.