Case Document

100%Judiciary

HCA010190B/2000

HCA 10190/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10190 OF 2000

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BETWEEN
	RAMBAS MARKETING CO., LLC	Plaintiff

	AND

	CHOW KAM FAI, DAVID	Defendant

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Coram: Hon Chung J in Chambers

Date of Hearing: 9 July 2001

Date of Ruling: 9 July 2001

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R U L I N G

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1.The plaintiff brings this action as the assignee of a debt allegedly due and owing from the defendant since August 1995 when the defendant gambled in the Desert Inn in Nevada, U.S. The defendant applied for a stay of this action on the ground that the Hong Kong Courts are not the appropriate forum but the Courts of Nevada are. That application was dismissed by Mr Recorder Ma in a written judgment dated 16 May 2001. There is now an appeal against that decision by the defendant pending determination by the Court of Appeal.

2.The application before me today is the plaintiff's application made pursuant to RHC O. 14 for summary judgment to be entered against the defendant. The defendant asks for an adjournment of that application on the ground that there is a pending appeal. The arguments advanced by counsel will be dealt with below.

3.The plaintiff argues that since the defendant's stay application has been dismissed by the learned Recorder, the plaintiff should be entitled to the fruits of this order and proceed with this action. Defence counsel, on the other hand, submits that because the merits of the action have not been considered, there are no "fruits of litigation" in the plaintiff's hands. I disagree with this submission. While it is true that the merits of the action have not been considered by the court, the merits of the defendant's stay application have been: the court has on 16 May 2001 decided against the defendant's contention that it is inappropriate to commence or continue with this action in Hong Kong.

4.Having come to this conclusion, I agree with plaintiff counsel's argument that an appeal does not operate as an automatic stay of proceeding. Further, I agree with the plaintiff's argument that the applicant for a stay pending appeal must show that there are special circumstances justifying the stay.

5.The defendant argues that the appeal will be rendered nugatory if no stay of proceeding is granted. Again, I disagree. As the plaintiff correctly points out, if the plaintiff is successful in its O. 14 application and if execution thereunder has in fact been levied against the defendant before the defendant's appeal is heard, there is no difficulty in repaying the judgment sum to the defendant if the defendant is successful in its appeal against the decision of 16 May 2001. In this connection, the plaintiff goes further by offering a solicitors' undertaking that the judgment sum will be repaid if the defendant is successful in its appeal and if the Court of Appeal so orders.

6.Defence counsel also argues that it is only logical that any proceeding relating to a stay application (for forum non convenience) (be it in the Court of First Instance or in the appeal courts) be disposed of before any application in the action itself is to be considered. That is correct as a general proposition. However, the defendant's stay application has been considered and determined on 16 May 2001. Here I only need to repeat what has been said earlier regarding the principles relating to stay pending appeal.

7.The defendant also argues that, consistent with its argument that it is only logical that a stay application ought to be disposed of before any other application, no evidence has been filed to oppose the O. 14 application. It is entirely a matter for the defendant as to whether to file or serve such evidence or not. In fact, taking into consideration the history of the proceedings between 16 May 2001 and today (set out in the 3rd affidavit of Samuel Ngo), I agree with the plaintiff's argument that the application for adjournment has the appearance of a tactical move.

8.For the above reasons, I find that my discretion should be exercised in refusing the application for an adjournment.

9.It should also be mentioned that the defendant has indicated that no separate application for an adjournment would be sought to file and serve evidence in opposition in the event this application for adjournment is refused. Both counsel and solicitor asked to be (and were) excused from attendance after the defendant's application for adjournment was refused.