EASY FORTUNE PROPERTY LTD v. YUNG CHUN HIM

CACV 109/2024, [2024] HKCA 817

On Appeal From [2024] HKCFI 615

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 109 OF 2024

(ON APPEAL FROM HCA NO. 1484 OF 2014)

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DECISION

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Hon Cheung JA (giving the Decision of the Court) :

1.  The defendant by Notice of Motion dated 5 August 2024 seeks leave to appeal to the Court of Final Appeal against our Decision of 15 July 2024 refusing to grant stay of execution of the judgment of Deputy High Court Judge K C Chan dated 29 February 2024 (‘2024 Judgment’) pending the determination of the defendant’s appeal against the 2024 Judgment.

2.  By a summons dated 13 August 2024 the defendant seeks an interim stay of execution of the 2024 Judgment pending the determination of his application for leave to appeal.

3.  The two applications are supported by the skeleton submissions of the defendant dated 5 August and 26 August 2024. The plaintiff opposes the applications by its written submission dated 19 August 2024.

4.  We will deal with the defendant’s applications on paper.

5.  Section 22(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (‘the Ordinance’) provides that leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

6.  The Notice of Motion did not identify any question of great general or public importance. Instead the Notice of Motion stated that :

‘1) Defendant/Applicant is hereby applying for :-

1.1 Leave to Appeal / Motion for Appeal to the Court of Final Appeal of the Decision dated 15 July 2024 by Hon Carlye Chu VP and Peter Cheung JA in the Court of Appeal a dismissed “Stay of Execution” in regard to enforcing repossession of the mortgaged property.

1.2 Order is sought for an “Interim Stay of Execution” in regard to enforcing repossession of the mortgaged property pending for determination of the Appeal by the Court of Final Appeal.

2) The Decision dated 15 July 2024 for a dismissed “Stay of Execution” is simply the result of lacking information of Hon Judges JA as the Appeal being dealt with had been “by paper” without hearing thus a chance for clarifications of the lacking information circumstance was regrettably not available for defendant.

3) This motion is also applying for an Order of “Interim Stay of Execution” as it is imperatively needed (time factor) and well justified (as the CA’s 15 July 2024 Decision is simply the result of lacking information) given further Appeal against the CA Decision does take lengthy time for process (whereas the Final Notice to property occupier to quit had already been served by bailiff on 2 July 2024).

4) In gist, there are totally two factors being addressed in the CA’s Decision as the grounds so dismissed the said Stay of Execution; they are the “irreversible situation” principle and concern on the value of security. These two factors can be well answered in this Appeal, and I strongly believe that if the CA were aware of all the information and facts (of which have been unrevealed by plaintiff), plus deeper analysis were provided by the defendant in regard to security protection for plaintiff, my application for Stay of Execution would, most probably, not have been dismissed by the CA.

5) Detailed clarifications and explanation for the grounds of this Appeal have been laid down in the Skeleton Submission of Defendant dated 5 August 2024.’

7.  All that we have decided in our Decision of 15 July 2024 is to refuse to stay the execution of the 2024 Judgment pending the appeal. The appeal itself has not been heard. Our Decision is an interlocutory judgment based on the reasons as explained in our Decision. Section 22(1) of the Ordinance is simply not engaged in that no question of great general or public importance is involved. Nor is there any justifiable reason being advanced under the ‘or otherwise’ ground.

8.  As the defendant has failed to obtain leave to appeal, the summons for interim stay likewise fails.

Conclusion

9.  Accordingly the two applications are dismissed with costs to the plaintiff to be assessed summarily. The defendant is to file and serve the list of objection to the plaintiff’s statement of costs dated 19 August 2024 within 14 days.