T v. Shiu Wai Tuen

HCA 2229/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2229 OF 2007

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BETWEEN

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Before: Deputy High Court Judge Carlson in Chambers

Date of Hearing: 5 September 2011

Date of Ruling: 5 September 2011

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R U L I N G

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1.I have before me four summonses all taken out by the defendant who was successful in the action before me, based essentially on findings of fact to the effect that I preferred the evidence of the defendant to that of the plaintiff. There was an appeal from that judgment and order to the Court of Appeal. The court upheld my assessment of the witnesses and dismissed the appeal on the claim. The appeal in respect of the counterclaim, in which I held that the plaintiff had been guilty of the tort of malicious prosecution, was successful as to quantum.

2.What has now happened is that the plaintiff is applying to the Court of Appeal for leave to appeal to the Court of Final Appeal.  There is a point here that perhaps needs to be made that the appeal in respect of the claim, which is for a liquidated sum of $17.8 million, will be an appeal as of right although of course the Court of Appeal acts very much as a filter and the court will decide on what particular grounds that appeal should proceed to the Court of Final Appeal. 

3.The plaintiff is also seeking leave to appeal, which she requires, in respect of the counterclaim.  All of this is going to come up for hearing on 1 November, so in just over two months’ time.  There is also a summons taken out by the plaintiff before the Court of Appeal for a stay of execution and I think also the continuation of the Mareva injunction.

4.Today, these summons are taken out by the now twice successful defendant for the following orders: firstly, that the amount of money that I ordered to be paid into court by the plaintiff as a condition for having given her leave to appeal should be paid out; secondly, that a lis pendens in respect of the defendant’s home which he shares with his wife should now be removed; thirdly, that the Mareva injunction granted as long ago as 26 October 2007 - so we are coming up to four years now - as continued by me on 2 November 2010 and further continued on 5 January 2011 should be discharged and that there should be an inquiry as to damages; and, lastly, that the stay of execution on the judgment on the counterclaim should now be lifted.

5.The defendant starts from a very advantageous position because, as I have already observed, he has been successful at first instance on findings of fact, which findings have now been confirmed by the Court of Appeal and so it is the case, and I think I can put it strongly as this, that it is very difficult in such circumstances to disturb concurrent findings of fact before the Final Court of Appeal.  Nevertheless, it is an appeal which is one that is brought as of right. 

6.The concern which Mr Lau, on behalf of the plaintiff, has raised is that if I accede to these applications, these four summonses, and if the plaintiff were eventually to be successful, there simply would be nothing for her to have by way of assets belonging to the defendant which she would be able to enforce on, and that is a fair point.  It is right to say that the defendant on his own evidence admitted quite frankly before me that he had got through all of the $17.8 million which the plaintiff had given him.  And there is that risk, but of course Mr Chu says that this does not really matter because one has to, first of all, consider what the prospects of a successful appeal are in these circumstances. The prospects of success essentially must now, if I may respectfully say so, be for the Court of Appeal to decide when it hears the notice of motion on 1 November, but I have observed, and I think I am entitled to observe, that this would be an appeal against concurrent findings of fact by myself and by the Court of Appeal.  

7.This is not an easy decision today.  The law is that a Mareva injunction, which is essentially an order to hold the ring until the trial at first instance is one that can be extended, as I have, pending the hearing of the appeal to the Court of Appeal, but now that appeal has gone and it has gone against the plaintiff and so Mr Chu is undoubtedly on strong ground in respect of this in saying, “Well, the injunction should at least be discharged as should the lis pendens.”  This is a delicate balancing exercise for me today.  That is the way I view this matter and I have decided, just about, to adjourn all four summonses to 15 November which, as I say, is just over two months away, to await the outcome of the plaintiff’s applications to be heard by the Court of Appeal on 1 November.   

8.In the light of the Court of Appeal’s decision, I will then be far better equipped, it seems to me, to deal with these summonses.  So I am going to adjourn to that date at half past 9. The costs of today will be costs in the four summonses.

Bruce Lau, instructed by Messrs Anthony Kwan & Co. for the Plaintiff

George Chu, instructed by Messrs Michael Pang & Co. for the Defendant