CHU CHUNG SHING INVESTMENT CO LTD v. LAM CHUNG AND OTHERS

DCMP 2773/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 2773 OF 2011

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DECISION

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1.  This is the plaintiff’s application for leave to issue a writ of possession against the 3^rd and 4^th defendants (collectively known as “the Defendants”), and to enforce the demolition order pursuant to Order 45 rule 3 and rule 8 of the Rules of District Court respectively.

2.  The background of this case is set out in the judgment handed down on 30 November 2015 (“the Judgment”), of which I shall not repeat.

3.  The Defendants are absent from the hearing. Having perused the various affirmations of service, I am satisfied the service of the judgment, the inter-partes summons, supporting affirmation and exhibits have been effected on the Defendants.  I am satisfied that the Defendants had notice of the proceedings.  I therefore proceed to hear the plaintiff’s summons in the Defendants’ absence. 

4.  At the hearing, I was informed by counsel that on 10 December 2016, four days before this hearing, the 3^rd defendant applied to the High Court for leave to appeal against the Judgment out of time.  There is currently no application before me from the 3^rd Defendant for a stay of execution of the Judgment.

5.  In view of the latest developments, the plaintiff now only proceeds with paragraph 1 of their summons, that is, leave to issue the writ of possession, and withdraws paragraphs 2 and 3 of their summons relating to the enforcement of the demolition order. 

6.  I have considered the supporting affirmation of Chu Tak Wing filed on 27 September and the exhibits filed therein.  I am satisfied the 3^rd and 4^th defendants have failed to comply with the orders given in the Judgment, in particular, they have failed to deliver vacant possession of the Roof and have failed to demolish the illegal structures therein.

7.  The Judgment was handed down on 30 November 2015, that is, more than a year ago.  The plaintiff has given ample time to the Defendants to comply with the said orders, and yet the Defendants have failed to do so.  Moreover, the Defendants have failed to respond to the plaintiff’s repeated request for compliance.

8.  The affirmations of Wong Mee Ling filed on 27 September, 4 October and 2 December 2016 show that every person in actual possession of the Roof would have had notice of these proceedings.

9.  In the absence of any submissions of hardship from the Defendants and in the absence of any application for stay of execution before me, I fail to see any good reason why the plaintiff’s application for leave to issue a writ of possession should not be granted. I grant leave to issue the writ of possession.

10.  Since costs should follow the event, I make an order that costs of this application be to the plaintiff with certificate for counsel, to be taxed if not agreed.

11.  I therefore make the following orders:

1) Leave to the plaintiff to issue a writ of possession against the 3^rd and 4^th defendants to deliver possession of the premises known about the roof at No 49 Chung On Street, Tsuen Wan, New Territories, Hong Kong (“the Roof”), pursuant to the Judgment made by Deputy District Judge W Y Ho on 30 November 2015; and

2) Costs of this application be to the plaintiff, with certificate for counsel, to be taxed if not agreed.