Telings International Hong Kong Ltd v. John Ho and Others

CACV 10/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 10 OF 2010

(ON APPEAL FROM HCA NO. 2114 OF 2005)

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BETWEEN

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Before: Hon Rogers VP in Chambers

Date of Hearing: 31 March 2010

Date of Decision: 31 March 2010

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D E C I S I O N

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1.On these applications, it is quite clear that if something is not done or if the security for costs application goes ahead, the defendants will not be in a position to pay for it and it will stifle the appeal. What is worse is if there is no stay of the judgment, it is quite likely that more serious things will happen. The defendants are likely to be made bankrupt, they will lose their professional position as a result and, I have no doubt, there are various things which would happen even after that.

2.The defendants have a right of appeal in this matter. I have considered the judgment and there are many aspects of it which cause me concern and I have to say that the overall picture causes me concern. I want to say as little as possible at this stage because the appeal, of course, has to be heard but, nevertheless, I would say this. Overall, I can understand the defendants’ case, but the plaintiff’s case does not make sense for a number of reasons. I am not going to list them out now but the idea that the defendants were going to pay $140 million in two years’ time, where the money was coming from and so on and so forth, does not add up, but the way they have put the case does add up. That is the overall picture.

3.What appears to me to have happened in the case below is a man - and really one can say little less than he was the prime mover responsible for the biggest commercial fraud in Hong Kong - filed a witness statement. He is clearly the person behind this case and he does not turn up in court, yet the judgment appears to be based on examination of minutiae and various emails and so forth.

4.I am not in any way saying whether the appeal will succeed but it is, in my view, impossible to say that it is hopeless. In my view, there is a reasonable prospect on this appeal and it is an appeal which should be allowed to go ahead and particularly in these circumstances. Therefore, I propose to make orders on these applications which will ensure that will happen and will ensure that nothing untoward happens before this appeal is concluded.

5.Order in terms of summons of 5 February 2010. Application for security for costs dismissed.

Mr Michael Yin and Mr Issac Chan, instructed by Messrs Yu, Tsang & Loong, for the Plaintiff/Respondent

Mr Clive Grossman SC and Ms Lisa Remedios, instructed by Messrs John Ku & Co., for the 1st and 2nd Defendants/Appellants