CHENG TANG KAM YUNG v. TANG KAM CHEUNG AND ANOTHER

CACV 185/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 185 OF 2013

(ON APPEAL FROM HCMP NO. 147 of 2008)

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BETWEEN

CHENG TANG KAM YUNG Plaintiff
and
TANG KAM CHEUNG (鄧錦祥) 1st Defendant
TANG KAM CHEUNG (鄧錦祥) appointed by the Order dated 27th December 2012 to represent the estate of CHEUNG YUK YING (張玉英), deceased since deceased 2nd Defendant

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Before : Hon Cheung and Kwan JJA in Court

Date of Hearing : 25 March 2014
Date of Judgment : 27 March 2014

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J U D G M E N T

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Hon Cheung JA (giving judgment of the Court) :

1. Deputy High Court Judge Simon Leung removed the 1st defendant as the administrator of the estate of his late father and replaced him by a professional administrator. The defendantslodged an appeal against the judgment and applied before Judge Leung for a stay of execution of the judgment. It was refused. Thedefendants then renewed the stay application before Chu JA, sitting as a single judge of the Court of Appeal. It was likewise refusedon 5 December 2013. The defendants by summons dated 23 December 2013 asked this Court to stay the execution of the judgment. In ourview the defendants’ summons must be treated as an appeal out of time against the determination of a single judge of this Court.Under Order 59 rule 14(12) of the High Court Rules the application must be made within 10 days of the determination. The defendants’ application is out of time. The 1st defendant says that he was told by a staff of the registry that the application was within time. We will address the matter on itsmerits.

2. In refusing the stay, Chu JA was exercising a discretionary remedy. The principle regarding an appeal to this Court against theexercise of discretion by a single judge is that this Court is not to exercise the discretion afresh but to consider whether thediscretion had been improperly exercised in the first place. This Court will only interfere if, for example, the discretion wasexercised on erroneous principles or irrelevant considerations had been taken into account or relevant considerations had been ignored.

3. In the present case Chu JA clearly had recognised the principle governing the stay of execution of judgment pending appeal. Shortof demonstrating that the appeal is so strong that justice requires the execution of the judgment to be stayed, the appellant mustshow that the appeal will be rendered nugatory if the execution is not stayed.

4. The 1st defendant was removed because of his delay in completing the administration, failure to administer the estate properly and failureto render proper accounts. Some examples of the 1st defendant’s default are his reliance on loans obtained from individuals who charged exorbitant interest rate of 43-48% and whilethe estate had received over $60 million, the 1st defendant claimed that they were absorbed by the expenses of and for the estate. These are all factual findings which the Courtof Appeal is unlikely to disturb unless they are plainly wrong. Chu JA had considered the merits of the appeal and the argumentsof the defendants in seeking to challenge the judgment. She held that the defendants had not demonstrated that the chance of successof the appeal is high. We agree with her view. The defendants are now merely repeating their arguments made before Chu JA whichshe had addressed. Many of these matters clearly do not assist the defendants in establishing a strong appeal, such as the plaintiffnot being a filial daughter, the terms of the 1st defendant’s undertaking on the sale of the estate, the method of sale of the estate by professional administrator, his expensesand also local customs on who should be the administrator. Neither can we see how the defendants’ appeal will be rendered nugatoryin the event they are successful if the judgment is not stayed now. Between now and the appeal the task of administration is simplytaken over by a professional administrator. Hence Chu JA said that the defendants’ position is not prejudiced.

5. Accordingly, the appeal is dismissed with costs to the plaintiff.

(Peter Cheung) (Susan Kwan)
Justice of Appeal Justice of Appeal

Mr Matthew Tse, instructed by Lily Fenn & Partners, for the plaintiff

1st and 2nd defendants, in person, present