POON CHI KONG v. CLUB DELUXE LTD

[English Translation]
DCMP 1932/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

(Miscellaneous Proceedings No. 1932 of 2001)

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BETWEEN

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Reasons for Decision

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1.  The present case stems from Labour Tribunal Case No.1830 of 2001.

2.  The Labour Tribunal gave judgment for the plaintiffs herein after trial. The award has been registered with this Court pursuant to Section 38 of the Labour Tribunal Ordinance, which provides that an award or order of the Tribunal shall on such registration become for all purposes a judgment of the District Court and may be enforced accordingly.

3.  The defendant (against whom the judgment was given at the Labour Tribunal) now applies for a stay of execution of the award made by the Labour Tribunal and already registered with the District Court. This morning, Mr Luk, solicitor for the defendant, informed me that the defendant has also applied to the Labour Tribunal for a stay of execution of the award pending application for leave to appeal, the hearing of which has been fixed for 31 July.

4.  Last night, I was informed by Mr Luk that the Labour Tribunal has made the following order: if by 30 July the defendant pays into the Labour Tribunal by way of security a total sum of $775,329.50 that the defendant has been adjudged to pay, execution of the award will be stayed until further order.

5.  I notice that the Labour Tribunal has apparently made the aforesaid order pursuant to Section 37 of the Labour Tribunal Ordinance. Upon an application for a stay of execution of an award or order after an application for leave to appeal against the award or order has been made, the presiding officer, the Court of First Instance or Court of Appeal has the power to order a stay of execution and to impose conditions on the stay of execution. In the present case, as the Tribunal has made the aforesaid order, it seems that I should not make any further order.

6.  The application today involves two issues. The first issue is whether the District Court has the power to order a stay of execution under such circumstances. I notice that Section 38 of the Labour Tribunal Ordinance states that once an award or final order of the Tribunal is registered, it shall “become for all purposes a judgment of the District Court” and may be enforced accordingly. In my view, once an award or final order of the Labour Tribunal is registered, it is tantamount to a judgment of the District Court, and all the laws, orders and rules relating to the enforcement of District Court judgments become applicable to that award or order. As a matter of law, therefore, the District Court has the statutory power to order, in appropriate circumstances, a stay of execution of an award or order of the Labour Tribunal which has been registered.

7.  The second issue is whether the District Court should order a stay of execution, particularly when the Tribunal has already made a similar order pursuant to Section 37 of the Labour Tribunal Ordinance. In my judgment, it is obvious that Section 37 specifically deals with the issues of under what circumstances and by which court can an order for a stay of execution be made where an award or order of the Labour Tribunal is subject to an appeal. It follows that, even though in principle the District Court may, in appropriate circumstances, order a stay of execution of an award or final order of the Labour Tribunal which has been registered after an appeal against that award or order has been lodged, in my judgment, unless the applicant for the stay of execution can show good reasons for not applying for such an order pursuant to Section 37 or explain why an order for a stay of execution obtained pursuant to Section 37 is inappropriate, there is, in my view, no reason for the District Court to exercise its power to order a stay of execution again.

8.  In the present case, the application today has to be dismissed unless the applicant is able to provide special reasons for applying to this Court for an order for a stay of execution rather than making an application in accordance with Section 37, or for disregarding the order for a stay of execution made by the Labour Tribunal pursuant to Section 37 and applying to this Court for another order. I have carefully considered the submissions made by Mr Luk on behalf of the applicant (or the defendant) at the hearing this morning but, with respect, cannot discern any proper reason for allowing the application.

9.  In any event, in this type of cases, the court no doubt has to take into account all the circumstances. However, the court would normally not grant an unconditional stay of execution merely because an appeal has been lodged, unless the absence of an order for a stay of execution would render the appeal nugatory and meaningless to the appellant even if the appeal were allowed, or unless it was probable that, if the appeal were allowed, the respondent would not return to the appellant the adjudged sums that the appellant had paid the respondent in the course of appeal. There may of course be circumstances that justify a departure from the above principle.

10.  I also take into account that the sum of money being the subject matter of the dispute has been outstanding for quite some time. Mr Luk claims that the appeal is meritorious, but I can find nothing in the documents to enable me to consider that claim. Nor indeed should I make a finding on that claim in the context of the present application.

11.  For the above reasons, both general and specific to the present case, I cannot see why the defendant should not apply for a stay of execution pursuant to Section 37 or comply with the order for a stay of execution made by the Labour Tribunal. Even if I should allow the present application, I do not see any special reason for not imposing conditions on the stay of execution.

12.  I have noted the condition imposed by the Tribunal on the stay of execution. Mr Luk submits that the time allowed to perform the condition is too short and that the defendant should perhaps be given one more day until 31 July, when its application for leave to appeal will be heard. In my view, however, one day does not make a significant difference.

13.  Regarding the defendant’s assertion that its business operation will be affected if there is no stay of execution, I take the view that, if the defendant pays, there will not be any enforcement, and the defendant’s business operation will therefore not be affected. On the other hand, there will be problems if the defendant carries on business when it is unable to satisfy the plaintiffs’ claim.

14.  For the above reasons, I dismiss this application. However, it does not mean that the applicant cannot have a stay of execution. As I have mentioned above, last night the defendant was granted a conditional stay of execution by the Labour Tribunal. Once the defendant complies with the condition, it will have a stay of execution. For these reasons, I refuse the present application.

15.  Regarding costs, I am of the view that the defendant should pay the plaintiffs’ costs. The costs for each plaintiff who is present at the hearing are assessed at $200. This means every plaintiff who has attended this hearing can be paid costs which are assessed at $200.

16.  The hearing today was conducted in Chambers. However, as it involves issues regarding the jurisdiction of the District Court to order a stay of execution under the present type of circumstances and the exercise of such jurisdiction, I am still minded to direct that this judgment can be reported. (The Judge and the parties discussed the reporting of the judgment.) I hereby direct that this judgment can be reported.

Representation: