A. KING SLIPWAY CO. LTD . v. LEUNG CHAK KWUN

HCMP4732/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.4732 OF 1998

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J U D G M E N T

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1. On 13 December 2001, I entered judgment for the plaintiff for an order of possession in respect of the suit property. The defendant now applies to stay the execution of the order pending the determination of his appeal. The only ground put forward is that the appeal is pending and that if the defendant is asked to deliver vacant possession he will suffer as a result.

2. The applicable principles are well established. The court has an unfettered discretion in staying execution of judgment. The court has to start with the assumption that a person is entitled to invoke the court procedures in order to realise the fruit of the judgment made in his favour, even though an appeal is pending. An appeal pending itself is therefore not sufficient to grant an application for stay. The applicant has to show some special circumstances which take the case out of the ordinary. I am afraid what the defendant has put forward before me today concerning his personal circumstances when judgment is to be executed, is not sufficient.

3. No special circumstances have been shown by the defendant. The application is, therefore, refused.

[Submissions on costs]

4. The plaintiff will have the costs of this application, to be taxed if not agreed.