H & K INVESTMENT LTD v. ANDREW KWONG

CACV 240/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 240 OF 2007

(ON APPEAL FROM LDPD NO. 567 OF 2007)

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REASONS FOR JUDGMENT

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Hon Cheung JA (giving reasons for judgment of the Court) :

1. The respondent appealed against the decision of Tang VP sitting as a single judge of this Court.  He did not attend the hearing of the appeal and this Court dismissed his application.  He had lodged a lengthy written submission in support of his application.  Based on what he had submitted, we also dismissed his application on the merits.

Stay of execution pending appeal

2. The respondent applied for a stay of execution pending appeal of the decision of H H Judge M. Wong given on 6 July 2007.  Judge Wong ordered the respondent to, among other things, deliver vacant possession of the property known as Block 3, Ground Floor, Unit B, Sea Ranch in Lantau Island to the applicant together with payment of arrears of rent, mesne profit and management fees. 

Orders of Tang VP

3. Tang VP refused the application for stay pending appeal, but, at the respondent’s request, stayed the execution of Judge Wong’s decision until 6 September 2007 conditional upon the respondent paying up the arrears of rent and management fees within 10 days from 21 August 2007.  Tang VP further ordered that should the respondent fail to pay the arrears of rent, mesne profit and management fees, the stay of execution shall be automatically lifted and the applicant be entitled to proceed with the execution of the order of Judge Wong. 

Exercise of discretion

4. The order made by Tang VP was based on an exercise of his discretion.  On an appeal from a single judge this Court will not exercise the discretion afresh but would consider whether the discretion was wrongly exercised in the first place, such as the judge not taking relevant considerations into account or had wrongly considered irrelevant factors. 

5. Tang VP took into account the fact that the tenancy had expired and on that basis he refused to grant a stay of execution pending appeal.  Insofar as there was a counterclaim by the respondent which was dismissed by Judge Wong, Tang VP stated that he would not comment on the merits of the counterclaim but he was satisfied that the respondent’s appeal does not have a strong prospect of success and certainly not one which affects the order relating to possession. 

6. We agree with the view of Tang VP.  The matters he had taken into account are clearly relevant matters.  In the circumstances we see no reason why we should disturb his exercise of discretion.  As to the stay of execution of the possession order until 6 September 2007, it was done at the request of the respondent.  We see no further reason why we should extend that order. 

Appeal on refusal to declare mistrial

7. The ground advanced by the respondent in this appeal is that he had applied to Judge Wong to discharge himself from hearing the case and to declare the trial a mistrial.    

8. Earlier on 31 May 2007 Judge Wong had dismissed the respondent’s counterclaim.  By a summons issued on 13 June 2007 the respondent applied for the following order : ‘Transfer case to High Court or Review Judge Wong’s dismissal of Respondent’s Counterclaim on 31 May 2007’. 

9. The respondent claimed that Judge Wong was prejudiced against him in dismissing the counterclaim.  Although he had previously made serious allegations against Judge Wong by questioning whether corruption was involved, in his grounds of appeal he stated that :

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Judge Wong’s improper conduct can be explained as either “corrupt” or “incompetent”.     I have no evidence that he has taken a bribe, but the transcripts of these proceedings contain ample evidence of his incompetence.’

10. On 15 June 2007 Judge Wong in dealing with the applicant’s claim for possession against the respondent also considered the application lodged by the respondent.  He refused the respondent’s request to make oral application to declare the trial a mistrial.  He, however, later adjourned the hearing to enable the respondent to call a witness.   Then on 6 July 2007 on the resumption of the hearing, he ordered possession to be made against the respondent. 

11. It may be argued that if the respondent is successful in his appeal on mistrial then the order for possession would have to be set aside.  However, we are not satisfied at this stage of the proceedings that he has a high likelihood of success on this issue which requires us to grant a stay of execution.  This is because irrespective of the respondent’s case on the counterclaim, any reasonable tribunal would have reached the same conclusion on the order for possession.  The lease had come to an end by effluxion of time.  There was no defence to this claim.  The counterclaim would have no effect on the applicant’s claim.

Conclusion

12. Accordingly we dismissed the respondent’s appeal against the decision of Tang VP and made no order as to the costs of the application.