Lo Shing Kin v. Sy Chin Mong Stephen

CACV 148/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 148 OF 2012

(ON APPEAL FROM HCA 2392 OF 2009)

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BETWEEN

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REASONS FOR DECISION

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1.Seagroatt J gave judgment to the plaintiff for the sum of about $29.6 million together with interest. The defendant applied for stay of execution of the judgment pending the appeal which will be heard in April 2013. Based on the judgment the plaintiff has issued a bankruptcy petition against the defendant. The hearing of the petition is 27 February 2013. The Judge had previously granted a stay conditional upon the defendant paying the judgment sum and interest into Court. The amount was about $30.9 million. The defendant only managed to pay $10 million into Court.

2.At this stage of the proceedings, the defendant atmost can only show that he has an arguable appeal.  The concern is really whether the appeal will be rendered nugatory if the judgment is not stayed.  The focus of the defendant’s argument is on the irreparable damage he will suffer if a bankruptcy order is made against him.  It is of note that the bankruptcy judge has a discretion whether to grant the bankruptcy order or not and I indicated to the defendant that I would only grant a stay if the judgment sum is paid into Court.  Based on the defendant’s agreement to pay the balance of the judgment sum into Court by two specified instalments, I ordered a stay of execution of the judgment conditional upon the defendant paying into Court,

1) $5 million on or before 31 January 2013; and

1) $15.9 million on or before 22 February 2013.

3.I further ordered payment out of the $10 million now in Court if either of these sums is not paid.  The plaintiff is to have the costs of the application with a certificate for one counsel.

Mr Horace Wong SC and Mr Alan Ng, instructed by CWL Partners, for the Plaintiff

Ms Teresa Wu and Mr John Hui, instructed by Charles Chu and Kenneth Sit, for the Defendant