Yeung Kwai Yan v. Cooper, John Giles

HCA 10649/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10649 OF 2000

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BETWEEN

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Before: Deputy High Court Judge Gill in Chambers

Date of Hearing: 28 July 2008

Date of Judgment: 28 July 2008

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J U D G M E N T

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1.This is an appeal by rehearing from an order made by the Registrar to pay out to the plaintiff funds paid into court by the defendant in partial satisfaction of the judgment debt.

2.The appellant defendant has not appeared to prosecute the appeal, probably because he is on a trip to Europe with his family.

3.The appeal was originally fixed to be heard on 16 June before another judge Deputy High Court Judge Au.  I note from the file that the defendant did not appear then either.  On that occasion the judge adjourned the case to this date 28 July before me, probably having read an e-mail that the defendant, unrepresented, had sent to the court on 10 June.  In it he stated that he would not be back in Hong Kong before the end of June, with his son requiring surgery in the US.  He requested that the appeal be rescheduled to a date to accommodate his return to Hong Kong in the first week in July.

4.Having returned to Hong Kong and been told of the new date, he wrote to my clerk by letter of 13 July seeking by the letter a further adjournment until after his further return to Hong Kong in “the third week of December 2009”.  This clearly was intended to be December 2008.  In this letter he stated:

“I have already made plans to go on a trip to Europe starting on 14 July 2008”. 

There had been no reference to this trip in the earlier informal application to adjourn before Deputy Judge Au.

5.The application, such as it was, was opposed, and I rejected it.  That decision was reported to the defendant by e-mail.  There was no response, and now no presence.

6.I turn to the issues of the appeal itself.

7.The plaintiff’s claim was as landlord against the defendant as tenant in default for repossession and rent.  Summary judgment was achieved in March 2005.  An extraordinary defence that the defendant had purchased the property, in which he produced an agreement and a receipt for the purchase price, resulted in his wife’s conviction for uttering forged documents and a sentence of suspended imprisonment.

8.The defendant appealed the civil judgment.  The appeal was dismissed in July 2006.

9.The defendant then sought leave to appeal to the Court of Final Appeal.  That was in due course refused.

10.A possession order was executed in June 2007.  The defendant then paid into court the sum of $2,196,141.47 to settle the fi.fa. writ.

11.The matter before the Registrar, and now me, is an application by the plaintiff for payment out of this sum.

12.The defendant filed an affidavit in opposition to the effect that the plaintiff does not legally have the right to the said funds.  He deposed that the plaintiff had broken the law.  There is nothing further, and no support for these bare allegations. 

13.Judgment has been entered.  An appeal to the Court of Appeal was lost and application for leave to appeal to the Court of Final Appeal was refused.

14.There is no procedural or other defect which should prevent the plaintiff from having the funds paid into court to satisfy the judgment.  The Registrar was clearly right to grant the application.  The appeal is wholly unmeritorious and is dismissed.

(Following a discussion on costs)

15.There will be costs on the indemnity scale to the plaintiff and that includes the costs reserved on 16 June 2008.

Mr A Cheung, instructed by Messrs Wong, Fung & Co., for the plaintiff

The defendant, in person, absent