XCHRX LOK YUEN CHUNG v. HO CHUN WAI IVAN

IN THE COURT OF APPEAL

1996, No. 53
(Civil)

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J U D G M E N T

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Ching, J.A. :

1. On 8th December, 1995 the Presiding Officer of the Lands Tribunal ordered that the Appellant should deliver up his premises to the landlord, the Respondent, by 10th January, 1996 and that meanwhile he should pay rent to the Respondent. On 5th January, 1996 the Appellant applied for a review on the strength of an affidavit. That application was refused on 26th February, 1996. On 19th March, 1996 the Appellant lodged an appeal to this Court, the grounds in the Notice of Appeal being substantially the same as the grounds for review contained in his affidavit. He now applies for a stay of execution pending the determination of his appeal.

2. The Appellant is unrepresented. He has not put before me either the pleadings or the reasoned judgment in the Court below. So far as can be ascertained from the documents before me the premises in question are a bedroom in the flat in which the Respondent and his family also live. Ground 1 of the grounds of appeal asserts that one of the reasons advanced by the Respondent in his application was that the Respondent needs the bedroom for occupation by his son who has diabetes and who has been sleeping in the living room for more than four years. It is said that this was the ground upon which possession was ordered.

3. In the Notice of Appeal the Appellant seeks to cast doubt upon the fact that the son is in fact suffering from diabetes. He claims that the medical receipts, none of which have been shown to me, show other minor illnesses but not diabetes. He wanted me to view a video taken by a hospital in which it is explained how people contract diabetes and how it should be treated. He says in effect that it is not necessary that the son should have a room for his own even if he is suffering from diabetes. The son has been sleeping in the living room without experiencing difficulties for some years and even if he is in fact suffering from diabetes that is not a reason for his requiring the room. It seems to me that this is possibly a misunderstanding in that it is not a prerequisite for the order that was made that the son should be shown to be suffering from diabetes or that the room is required for treatment of that diabetes. No grounds have been shown for the admission of fresh evidence at this stage. Finally the Notice of Appeal asserts that the Presiding Officer was wrong in considering that the Respondent would have no difficulty in securing alternative accommodation.

4. Appeals should not be rendered nugatory. At the same time the Respondent has successfully proved his case in the Court below and ought not to be kept out of the fruits of his judgment without good reason. Inevitably, the chances of success in the appeal must be considered when balancing the two opposing positions. The present case is one peculiarly of fact to be decided by the Presiding Officer who saw the witnesses, heard them give evidence and who was in the best position to come to findings of fact and to draw inferences. While I do not wish to say anything which may prejudice the outcome of the appeal I must say that nothing that has been put before me at this stage persuades me to grant a stay.

5. In the circumstances the application must be refused.

(Charles Ching)

6. Justice of Appeal