(A) Introduction
In High Fashion New Media Corporation Ltd (suing on behalf of itself and also in its capacity as the sole shareholder of Longford Information and Technology Co., Ltd) v. Leong Ma Li, HCMP 932/ 2020, [1] date of judgment: 19 September 2025, the Hong Kong Court of First Instance (the “CFI”) dismissed the Defendant’s application for suspension or stay of execution of a committal order pending further appeal.
This case clarifies the threshold requirement for staying a committal order, addressing the intersection of civil procedure and personal liberty in contempt proceedings. It affirms that an applicant must demonstrate a reasonably arguable appeal before a stay may be considered. It also emphasizes that a lower court lacks authority to stay an imprisonment order after a superior appellate court has dismissed an appeal on the merits. Further, it reinforces the procedural requirement that any application for suspension or stay of execution pending further appeal must be made directly to the appellate courts.
(B) Facts
By a Judgment handed down on 26 July 2022 (the “Liability Judgment”), the Defendant was found guilty of having committed contempt of court in failing to comply with an order in HCA 1953/2014 made by Chow J (as he then was). [2]
By a Decision (the “Sentencing Decision”) made on 30 May 2024, the Defendant was committed to prison for a 4 weeks (the “Committal Order”). The CFI further ordered that the execution of the Committal Order be suspended pending the determination of the Defendant’s appeal against the Liability Judgment, on the condition that the Defendant paid $500,000 into Court by 4pm on 31 May 2024. She was also ordered to put the sum of RMB8,606,600.43 (or an equivalent sum in Hong Kong Dollars) into an escrow account. [3]
The Defendant's appeal against the Liability Judgment was dismissed by the Court of Appeal (the “CA”). Her application for leave to appeal that dismissal to the Court of Final Appeal (the “CFA”) was still pending. [4] Separately, her appeal against the Sentencing Decision was also still pending. [5]
There are 3 Summonses before the CFI: [6]
(1) The Defendant’s Summons filed on 15 November 2024 (“D’s 1st Stay Summons”) for an order that the execution of the Committal Order be suspended or stayed until 28 days after the disposal of the Sentencing Appeal;
(2) The Defendant’s summons filed on 5 December 2024 (“D’s 2nd Stay Summons”) for an order that the execution of the Committal Order be suspended or stayed until 28 days after:
(a) the disposal of the defendant’s application to the CA and (if necessary) the CFA for leave to appeal against the CA’s Judgment dated 18 November 2024 in CACV 341/2022,
(b) if leave to appeal is granted, the determination of the defendant’s appeal by the CFA, or
(c) further order of the Court; and
(3) The Plaintiff’s Summons filed on 12 December 2024 (“P’s Activation Summons”) for an order that the Committal Order be activated, and if necessary, a warrant for committal against the defendant be issued; alternatively, if the execution of the Committal Order is to be suspended, various conditions be imposed.
(C) Decision
The CFI dismissed the D’s 1st Stay Summons and the D2’s 2nd Stay Summons and P’s Activation Summons with costs to the Plaintiff on an indemnity basis with certificate for two Counsel (including all costs reserved) on the following grounds:
(a) D’s 1st Stay Summons: The CFI held that a short sentence alone (and the possibility that the appeal would/might be rendered nugatory) does not automatically entitle the Defendant to a stay of execution of the imprisonment or an order to that effect. [7] While it is trite law in civil proceedings that an arguable appeal (i.e., one with reasonable prospect of success) is the minimum requirement for a stay, the CFI also considered the approach adopted in criminal cases, where personal liberty is at stage. Under both approaches, the Defendant must demonstrate that her appeal against sentence was "reasonably arguable" (i.e., had a real chance of success). [8] The CFI examined all five grounds of appeal and found none of them to be reasonably arguable. Therefore, the Defendant failed to meet to minimum requirement for obtaining a stay of execution of the Committal Order or an order to that effect. [9]
(b) D's 2nd Stay Summons: The CFI found that it lacked jurisdiction to grant a stay pending an application for leave to appeal to the CFA when the CA has already made a determination on the Defendant's appeal on liability. The power to stay execution after the CA has decided a matter rests solely with the CA or the CFA under Section 26(1) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484). [10] The CFI also held that it would be inappropriate for a lower court to assess whether a superior court’s judgment might be wrong on appeal. Any application for a stay must therefore be made directly to the appellate courts. [11]
(c) P's Activation Summons: The CFI activated the 4-week prison sentence. It highlighted that a suspended committal order cannot be activated automatically and hence a formal Court Order is required after an application made by Summons before an individual may be deprived of liberty. [12] The CFI also ordered the return of the HK$500,000 "bail money" to the Defendant. [13]
(D) Key Takeaways
In conclusion, this case provides the following significant guidance for applications for suspension and stay of execution of an imprisonment order:
(1) No Automatic Stay for Short Sentences: A contemnor facing a short term of imprisonment cannot assume they will automatically remain free pending appeal. The Court will not grant a stay merely to prevent the appeal from being rendered nugatory.
(2) Threshold for Stay of Execution: The requirement for obtaining a stay of execution is consistent across both civil and criminal proceedings. In all cases, the applicant must demonstrate that the appeal is "reasonably arguable" (i.e. has a real prospect of success).
(3) Jurisdictional Limit of Lower Courts: It is inappropriate for a lower court to assess whether a superior court’s judgment might be wrong on appeal. Any application for a stay pending further appeal must therefore be made directly to the appellate courts.
(4) Activation Requires a Court Order: A suspended committal order cannot be enforced automatically upon a breach of its conditions. The applicant must apply to the court for an activation order before the contemnor can be imprisoned.
[1] https://legalref.judiciary.hk/doc/judg/word/vetted/other/en/2020/HCMP000932C_2020.doc
[2] High Fashion New Media Corporation Ltd (suing on behalf of itself and also in its capacity as the sole shareholder of Longford Information and Technology Co., Ltd) v. Leong Ma Li, HCMP 932/ 2020, date of judgment: 19 September 2025, §1
[3] Ibid, §2
[4] Ibid, §3
[5] Ibid, §4[6] Ibid, §5
[7] Ibid, §9
[8] Ibid, §10-11, 16
[9] Ibid, §53
[10] Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.
[11] High Fashion New Media Corporation Ltd (suing on behalf of itself and also in its capacity as the sole shareholder of Longford Information and Technology Co., Ltd) v. Leong Ma Li, HCMP 932/ 2020, date of judgment: 19 September 2025, §71
[12] Ibid, §82-85
[13] Ibid, §86
No comments:
Post a Comment