HEE LEE INVESTMENT CO LTD v. JOY EXPRESS LTD

CACV 222/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 222 OF 2004

(ON APPEAL FROM HCA 4096 OF 2002)

______________________

BETWEEN

  HEE LEE INVESTMENT COMPANY LIMITED
(喜利置業有限公司) Plaintiff/Respondent
and
  JOY EXPRESS LIMITED  
  (駿傑有限公司) Defendant/Appellant

______________________

CACV 164/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 164 OF 2004

(ON APPEAL FROM HCA 4096 OF 2002)

______________________

BETWEEN

  HEE LEE INVESTMENT COMPANY LIMITED
(喜利置業有限公司) Plaintiff/Respondent
and
  JOY EXPRESS LIMITED  
  (駿傑有限公司) Defendant/Appellant

______________________

Before: Hon Yuen and Tang JJA in Court

Date of Hearing: 7 January 2005

Date of Decision: 7 January 2005

Date of Reasons for Decision: 14 January 2005

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REASONS FOR DECISION

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Hon Tang JA (giving the Reasons for Decision of the Court):

1. Hee Lee Investment Company Limited (“Hee Lee”) is the plaintiff in HCA 4096/2002. Joy Express Limited (“Joy Express”) isthe defendant.

2. On 3 May 2004, Chung J ordered the defendant to remove or demolish the neon signboard measuring approximately 10 meters by 2.8 metersand bearing, inter alia, the Chinese characters “港式餐廳” outside the north-eastern side of the 1st Floor, Cheong K Building, Nos. 84 and 86 Des Voeux Road Central, Hong Kong (“Property”) facing Des Voeux Road Central and totake all necessary steps to remove all the obstructions of the 2 sets of windows each measuring approximately 4 meters by 1.5 metersbuilt on the north-eastern side of the Property. This is the subject of the appeal in CACV 164/2004.

3. On 12 July 2004, Joy Express, in the meantime, having failed to comply with the Order of 3 May 2004, Chung J further ordered thatHee Lee be at liberty to do such acts as were required by the Order at the cost of Joy Express, and upon the acts being done theexpenses so incurred by Hee Lee may be assessed and execution may be issued against Joy Express for the amount so assessed. Thisis the subject of the appeal in CACV 222/2004.

4. By summons dated 20 July 2004, Joy Express sought a stay of the Order of 12 July 2004 and the consolidation of the two appeals.

5. By summons dated 30 June 2004, Hee Lee sought security for costs for the appeal against Joy Express.

6. These summonses were heard by Yeung JA who on 13 September 2004 ordered the consolidation of the two appeals. He refused a staybut ordered security in the sum of $200,000.

7. By summons dated 15 September 2004, Joy Express has applied to this court for a stay as well as to rescind the order for security.

Stay

8. Order 59, rule 14(4) of the Rules of the High Court provides that:

“Where under these rules an application may be made either to the court below or to the Court of Appeal, it shall not be made inthe first instance to the Court of Appeal, except where there are special circumstances which make it impossible or impracticableto apply to the court below.”

9. There has been no acceptable explanation from Joy Express why no application was made to Chung J for a stay. Nor were there specialcircumstances which made it impossible or impracticable for Joy Express to apply to Chung J. For that reason, Yeung JA refused astay. We have no reason to disagree. Particularly since this is not a case where the refusal to stay would render the appeal nugatory. In the event of Joy Express succeeding in the appeal, there is no reason why the neon signboard and the other obstructions couldnot be reinstated.

10. In his oral submission, Mr Choy referred to Redland Bricks Ltd v. Morris and Another [1970] AC 652 and made the point that the 3 May 2004 order was “unworkable” because it had failed to inform Joy Express precisely what it wasordered to do in relation to the obstructions. We do not agree. The order made it quite clear that the obstructions had to be removedand had clearly identified the obstructions. That being the case, the fact that Joy Express was ordered to take all necessary stepsto remove all the obstructions did not render the order imprecise. Mr Choy also argued that the removal of the obstructions mightpose a danger to the public. But there was no evidence to that effect. Nor had the point been taken in the defence or in the noticeof appeal. So that was not an argument we would entertain and we declined to do so.

Security for costs

11. Although Mr Choy made no submission in relation to security for costs, for the sake of completion we will deal with this matter. It is clear from the evidence that although Joy Express owns a valuable Property, that Property is encumbered with an “all-moneys”charge. Yeung JA relied on affirmations filed by Joy Express in its application to allow Mr Choy to be its representative for thepurpose of the litigation, where Joy Express admitted “that it had neither budget nor spare money to pay for any legal fees”. On the evidence before him, Yeung JA was perfectly entitled to conclude that this was a proper case to order Joy Express to providesecurity for Hee Lee’s costs of the appeal and he set the amount at $200,000. Again, we see no reason to take a different view. As for the chances of success of the proposed appeal, suffice it to say that we do not consider that they are such as to cause usto exercise our discretion not to order security despite Joy Express’ impecuniosity.

Conclusion

12. For the above reasons, we dismissed Joy Express’ application by summons dated 15 September 2004 with costs.

(Maria Yuen) (Robert Tang)
Justice of Appeal Justice of Appeal

Mr K. Lin, instructed by Messrs Vivien Chan & Co., for the Plaintiff (Respondent)

Defendant (Appellant) in person and represented by its Director Mr Choy Bing Wing by leave