Pine Enterprises Ltd v. Cyber Strategy Ltd and Another

CACV 116/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 116 OF 2008

(ON APPEAL FROM HCA NO. 1221 OF 2006)

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Before: Hon Rogers VP in Chambers

Date of Hearing: 18 August 2008

Date of Decision: 18 August 2008

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D E C I S I O N

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1.On 18 July, I ordered that security for costs of this appeal should be given and the order was made that the 1st and 2nd Defendants should provide the security.  This morning, I am faced with an application for an extension of time for a period of 42 days from 15 August for that to be done. 

2.The basis on which that application is made is that there is a “letter” from a company by the name of Beijing Olympics Limited.  That document has no printed heading nor does it show any address or contact details.  It says:

“I am writing in regard to the captioned issue above.  We confirm that we are able, willing and determined to continue to support our subsidiaries, namely, Lecture Kit Limited and Cyber Strategy Limited, to pursue the appeal in CACV 116/2008 to the Court of Appeal. 

However, the standstill situation in Beijing due to the Olympic Games has created difficulties to our funding arrangement to Hong Kong.  We expect it will get back to normal in mid-September.  Accordingly, we are requesting to extend the deadline to pay in the security for costs to the end of September.”

3.When inquiries were made as to what exactly this Beijing Olympics Limited is, it transpires it is neither a Hong Kong company, nor a PRC company.  It is a BVI company.  It has no connection with the Olympics at all.  In those circumstances, it would be surprising in the extreme if it had any known assets in the PRC, given the fact that the Beijing Olympics, which happen to be on at the moment, have been the most important event in the PRC and the name of the Olympics, particularly in conjunction with Beijing, has been the subject of a great deal of publicity about the protection which is given to the official organisation in Beijing.  I would be particularly surprised if this company, being a BVI company, were allowed to have any bank account or trade in the PRC.

4.Leaving that aside, there is simply nothing that has been shown to me that this company has sufficient assets.  I have been told that it deals in real estate.  That means nothing.  There is not the slightest scrap of evidence before me that this company has any real assets.  What I have been shown by Miss Chan, who appeared on behalf of the Plaintiff, from the company prospectus, that Asian Information Resources Holdings issued namely a public statement headed “Major transaction relating to the proposed disposal of the entire interest in the disposed group” would indicate that indeed this Beijing Olympics Limited has no operation and is simply an investment holding company, whatever that means, but that does not indicate to me what assets it has and whether it has sufficient ready assets.

5.In my view, even though Miss Gwilt has now changed the application and asked for another seven days in which to file further evidence, I do not consider that that is right.  This order for security for costs has been now in effect for a month and if there were going to be difficulties in raising money they would have been foreseeable.  This has been left to the last minute and on the basis of this piece of paper, which can hardly be dignified as a letter, I am afraid I am not prepared to grant any further extension.

Ms Linda Chan, instructed by Messrs Alfred Lam, Keung & Ko, for the Plaintiff and 1st Third Party/Respondents

Ms Angela Gwilt, instructed by Messrs Tsui & Co, for the 1st and 2nd Defendants/Appellants