Asialand Ltd and Another v. Lam Yiu Cho and Others

CACV 45/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 2007

(ON APPEAL FROM HCA NO. 1944 OF 2005)

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BETWEEN

(By Original Action)

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AND BETWEEN

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(By Counterclaim)

Before:  Hon Tang VP in Chambers

Date of Hearing: 20 April 2007

Date of Decision: 20 April 2007

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D E C I S I O N

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1.This is the 1^st plaintiff’s application for stay of execution pending appeal.  Deputy Judge Gill’s judgment requires the plaintiff to pay the 1^st defendant a sum of approximately $38.5 million, in return for the transfer of certain shares in the 2^nd defendant.  The amount of $38.5 million is inclusive of interest.

2.The judge has refused a stay but this is not an appeal from him, and the discretion is mine to exercise.  The basis upon which I should consider whether a stay should be granted is well known.  The starting principle is that the successful party should not be deprived of the fruits of the judgment in his favour and that a stay should not be granted unless the court is satisfied that there are good reasons for doing so.  Mr Edward Chan, who appears for the plaintiff, has suggested three reasons why a stay should be granted.  He also submitted that I should consider them not only singly but also collectively.

3.The first ground is that the plaintiff has strong grounds of appeal.  I have to say upon perusal of the judgment and I have perused the judgment more than once and the pleadings, I am not satisfied that this is a case where I can say that the 1^st plaintiff has strong grounds of appeal.  However, I am satisfied that the 1^st plaintiff does have arguable grounds of appeal.

4.The second reason is over the question of the stamp duty which would be payable in the event of the specific performance of the purchase of shares.  I do not know the amount of the stamp duty but in comparison with the amount payable, the stamp duty is likely to be small.  In any event, Mr Warren Chan who appears for the 1^st defendant is wiling to undertake on behalf of the 1^st defendant that in the event of the appeal being successful, and the 1^st defendant is required to repay the amount paid to the 1^st plaintiff, the 1^st defendant would also pay the amount of the stamp duty incurred in the transfer of the shares.  So this ceases to be a reason for granting a stay of execution pending appeal.

5.The third ground Mr Chan only suggests as a ground rather faintly.  It is that the 1^st defendant has the right of residence in Australia.  But it is clear from the evidence of the 1^st defendant that his home is in Hong Kong.  There are many people in Hong Kong who have a right of abode in foreign lands and that fact would not normally be sufficient to justify a stay pending appeal.

6.Furthermore, the 1^st defendant has voluntarily disclosed that he has liquid assets in Hong Kong in the amount of $27 million, so he is obviously a substantial person, although I note Mr Edward Chan’s point that these assets could be removed relatively easily from within the jurisdiction.  But I am not satisfied in the circumstances of this case that there is an appreciable risk that if the 1^st plaintiff were to succeed in the appeal, the appeal would be rendered nugatory because the defendant would not be in a position to repay the amount payable.

7.Mr Edward Chan also informed me that the plaintiff is prepared to pay the amount payable to a stakeholder but that in itself is not a reason for a stay.

8.In all the circumstances, I do not believe this is a suitable case for a stay pending appeal. 

9.The summons is dismissed with costs.

Mr Edward Chan, SC, Ms Linda Chan and Mr Alan Woo, instructed by Messrs S.K. Lam, Alfred Chan & Co., for the 1^st Plaintiff (by original action)

Mr Warren Chan, SC and Mr Simon Yip, instructed by Messrs Lau, Kwong & Hung, for the 1^st and 2^nd Defendants (by original action)