Mandecly Ltd and Another v. Hao Wei and Others

CACV 347/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 347 OF 2006

(ON APPEAL FROM HCA 1216 OF 2002)

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Before: Hon Tang VP in Chambers

Date of Hearing: 11 April 2008

Date of Decision: 11 April 2008

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DECISION

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1.The background to this application is complicated.  The parties are familiar with them and I will not to go into any detail.

2.On 13 November 2007, the defendants’ appeal from the judgment of Yam J was dismissed.  There is an application for leave to appeal to the Court of Final Appeal which is set down to be heard by this court on 13 June 2008.  There is also an application for a stay pending the resolution of the appeal to the Court of Final Appeal which will be heard on the same day.

3.In the meantime, however, on 20 December 2007, the defendants applied by summons to Yam J to have the order varied.  That has been adjourned to be heard on 12 June 2008.

4.But, on 31 January 2008, the plaintiffs moved to commit the 1^st defendant for contempt and sought a custodial sentence.  Sentencing has been adjourned to 14 April 2008.  Mr Fung SC, appearing for the plaintiffs, has informed me that it is highly probable that sentencing would be further adjourned on 14 April 2008.  The 1^st defendant has appealed from the contempt order and that appeal will be heard on 23 May 2008.

5.The defendants now seek an interim stay pending their application for a stay which as I have said will be heard on 13 June 2008.

6.The main reason advanced for the interim stay is the threat of contempt proceedings.

7.Mr Fung for the plaintiffs has indicated that the plaintiffs are prepared to undertake not to take any further contempt proceedings in relation to the continued failure on the part of the 1^st defendant to comply with the order.

8.It is not entirely satisfactory, however, that the plaintiffs, having moved for contempt and sought a custodial sentence notwithstanding that the defendants’ application for variation was still outstanding, should now seek to avoid an interim stay by promising not to invoke further the power of the court to commit for contempt.

9.Mr Fung accepts that the court has the discretion to grant an interim stay and the authorities referred to by Mr Yu in his skeleton submission support this view.  They are (1) a decision of Ma CJHC in the case of The World Food Fair Limited and Anor v Hong Kong Island Development Limited, CACV 398/2003, dated 30 August 2005; and (2) the judgment of Ribeiro PJ in Joint & Several Liquidators of Kong Wah Holdings Ltd v The Grande Holdings Ltd [2006] 9 HKCFAR 795.  In the latter case, in fact, there was a similar threat to commit for attempt.

10.Here, of course, the distinction is that today Mr Fung has given on behalf of his clients an undertaking not to issue further contempt proceedings so that threat has been removed.

11.Even so, in all the circumstances of the case, having regard to the background, the long and possibly acuminous litigation between parties, I believe the sensible thing to do is to grant an interim stay.

12.Subject to the conditions stated in the amended summons dated 8 April 2008, with the exception of condition (i), a stay is granted pending the resolution of the application for a stay to be heard on 13 June 2008.

13.Costs of the application be in the cause of the summons for stay dated 21 February 2008 which will be heard on 13 June 2008.

Mr. Benjamin Yu, SC and Ms. Eva Sit, instructed by Messrs Fred Kan & Co., for the Defendants

Mr. Patrick Fung, SC and Mr. Lee Tung Ming, instructed by Messrs Anthony Siu & Co., for the Plaintiffs