Wei Bingqing v. Xie Xiangrong

HCA 2654/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2654 OF 2003

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BETWEEN

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Before: Hon Chung J in Chambers

Date of Hearing: 25 August 2005

Date of Handing Down Decision: 25 August 2005

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D E C I S I O N

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1.This is the plaintiff’s application for stay of execution of the orders made on 2 August 2005.  One of the defendant’s objections is there is no order made on that day (save as regards costs) which can properly be made the subject-matter of a “stay”.  I assume for present purposes that all those orders can be the subject-matter of a “stay”.

2.The period of stay sought herein is not entirely clear because the summons refers to a stay “until after disposal of the action herein”.  During the hearing, plaintiff’s counsel says that that was only an alternative application.  He says the primary application seeks a stay for “a few months” to enable the plaintiff to comply with the orders.  The affidavit evidence filed in support says that, since November 2004, the plaintiff’s health condition renders him unable to manage his own affairs.  It should be noted there is no evidence as to when (if at all) the plaintiff will recover.

3.During the hearing, I indicated to the plaintiff that the evidence filed in support of this application is not satisfactory.

4.First, the evidence in support fails to mention the plaintiff’s assets, their whereabouts and whether there is anyone (and, if so, who) may have been managing the plaintiff’s assets for him since November 2004.

5.Secondly, Mr Yang, who has been given full authority in writing to conduct this action for the Plaintiff since June 2003, have not been entirely frank to the court.  For example, he never disclosed the fact that he has been so authorized since that time (this fact was only disclosed by counsel during the hearing).  Nor has he disclosed anything about the movement of the sum of US$2.205 million after it had been transferred from the bank account with HSBC to the plaintiff’s US bank account.  Counsel also disclosed that the transfer was effected by the plaintiff’s solicitors on the plaintiff’s written instruction (given when he was in the US).  As a result, the last-mentioned account was known to the plaintiff’s solicitors since at least September 2003.  The US bank account was never mentioned in any of the plaintiff’s affidavits.

6.The plaintiff asks for an adjournment to file further evidence in support of this application.  This is opposed by the defendant.

7.Taking into account all the circumstances, I agree with the defendant that the adjournment application should be refused.

8.Because I am not satisfied from the materials before me that a good reason has been shown, the stay application itself is also dismissed.

Mr Kenneth C L Chan, instructed by Messrs Deca Lin & Partners, for the Plaintiff

Mr Ernest Koo, instructed by Messrs Peter C Pan & Co., for the Defendant