CHUNG FU CHEUNG v. HAU HON SHEK

HCMP 1706/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1706 OF 2014

___________________

___________________

________________

D E C I S I O N

________________

1.  There is an interesting development this morning.  I have been informed by Mr Cheung, who appears for the plaintiff, that an appeal has been filed by the plaintiff against the order of Deputy High Court Judge Yau dated 14 July 2014 (“Order”) on the basis that the learned Deputy Judge was wrong to have granted the Order against the defendant as opposed to the Bailiff.  The reason being that the Bailiff does not act as the defendant’s agent in the execution of the writs of possession in question.  That is consistent with the commentary at rubric 45/1/11 of Hong Kong Civil Procedure 2014, volume 1.  It is indeed common ground between the parties that the Order has been granted against the wrong party.

2.  However, the plaintiff seeks to persuade this court to continue with the Order for fear that the Bailiff would enforce the writs prior to the resolution of the appeal.

3.  I am unable to agree that an inappropriate order should be continued by the court.  Further, the plaintiff accepts that an injunction may be obtained from the Court of Appeal pending the resolution of the appeal where the circumstances so justify.

4.  In the premises, whilst I have some sympathy for the plaintiff for the position in which he finds himself, I must discharge this injunction.

5.  Costs of this application be to the defendant to be assessed summarily as follows:

(i)   The defendant to file and serve a statement of costs within 7 days from today;

(ii)   The plaintiff to file and serve a statement of objection thereto, if so advised, within 7 days thereafter;

(iii)   The assessment will then be made by the court on papers.