IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO. 2278 OF 2008
Before : Deputy High Court Judge Seagroatt in Chambers
Date of Hearing : 1 June 2011
Date of Judgment : 1 June 2011
J U D G M E N T
1. In this inter pleader action the plaintiff had succeeded before Master de Souza in respect of its claim to owner ship of the contentsof six containers, those contents being raw plastic materials.
2. Following the judgment of Master de Souza the claimant lodged an appeal and then applied for a stay of execution in respect of thesix containers of goods. The original interim stay of execution was ordered on 1 March 2011 when the goods were in the hands ofthe Commissioner of Police. However Master de Souza lifted the stay on 11 May. The Commissioner returned the goods to the plaintiffon 23 May, and thereafter, according to what Mr Leung has told me and from correspondence from the plaintiff’s solicitors, thegoods were sold by the plaintiff.
3. The claimant appealed the Master’s order lifting the stay by notice of appeal dated 16 May. It was amended on 27 May. That appealcomes before me. I point out that the appeal against the Master’s substantive judgment on the merits of the claim is to be heardby the Court of Appeal on 15 June, two weeks hence.
4. Since the goods are no longer in existence, having been sold legitimately by the plaintiff in the ordinary course of business, therecan no longer be any form of stay of execution. There is nothing to which such an order can be attached and so Mr Chu, for the claimant,has had the ground cut away from him. However he has contended that, since the goods, as now appears from what I have been informed,were transferred to other containers, from the original six to five in number (the original containers having been purchased by theclaimant), and one of those five containers has been removed from the container yard, I should order a stay leaving the Commissionerof Police to try and identify the containers and goods, if any. Such a speculative exercise would be fraught with problems.
5. Mr Chu has also argued that if there cannot now be a stay of execution for the reasons I have set out above, I nonetheless havepower to order, as a substitute for a stay, a direction that the plaintiff pay into court a sum of money equivalent to the valueof the goods. That is a wholly different and to me new concept of what the court can order in these circumstances. Whereas whatwas originally ordered by the Master (and subsequently lifted by him), was a holding exercise in respect of the subject matter ofthe action, the alternative proposed to me is wholly different. It would not be a neutral protective exercise. The disposal ofthe goods cannot in any event be regarded as the result of any fault or mistake on the part of the plaintiff. If I were to adoptsuch a course it could be punitive affecting the financial position of the plaintiff who, as matters presently stand, has succeededin the litigation. It is not within my powers to adopt this alternative even if the claimant were to succeed in this appeal on themerits, and I would not consider it to be just. Accordingly it is not necessary for me to consider any merits of the appeal andtherefore the appeal must be dismissed with costs to the plaintiff. I was informed by counsel that as a result of my decision toassess costs, they have been able to agree them at an inclusive figure of HK$50,000.
Mr Kelvin Leung, instructed by Messrs Hau, Lau, Li & Yeung, for the Plaintiff
Mr George Chu, instructed by Messrs Huen & Partners, for the Claimant