YU KIT CHIU AND ANOTHER v. CHAN SHEK WOO t/a "陳潮昌士多"

DCCJ 5488/ 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

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JUDGMENT ON DEFENDANT'S
APPLICATION FOR LEAVE TO APPEAL
AGAINST REFUSAL OF STAY OF EXECUTION

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The background

1. On 9 August 2005, H.H. Judge C.B. Chan struck out the defendant's Defence and Counterclaim for disclosing no reasonable cause of action and/or defence by reason of a point of law raised by the Court of Appeal in Chan Tin Shi c Li Tin Sung & Ors., CACV 71 of 2003.  The plaintiff was given judgment principally for vacant possession of the premises and damages for trespass to be assessed, amongst others.  

2. Up to and including 19 December 2005, the plaintiff had not filed any application to appeal against the said judgment or ever explained why, whether by himself or his lawyers. 

3. On 19 December 2005, I made an order to dismiss the defendant's application for stay of execution of the said judgment on the ground that:

(1)   it was obvious that the defendant did not intend to appeal against the said judgment;

(2)   the time for appeal had already run out;

(3)   the defendant only applied for a stay of execution to stay on the premises as long as possible.

I also ruled, amongst others, that a stay would subject the plaintiff to grave hardships because of a real risk of the government's re-entry due to the defendant continual breach of the user of the Short Term Waiver. 

4. On 29 December 2005, the defendant took out the present application to appeal against my said order. 

5. On 5 January 2006, the CFA reversed the decision in Chan Tin Shi.

6. On 22 February 2005, the defendant made an affirmation (pp. 323 – 335).  He took the view (para. 10: p. 327) that I had totally misunderstood his intention in not lodging any appeal against the said judgment. 

The Law

7. The defendant's counsel submits that it is necessary for the defendant to show that firstly, the appeal was bona fide, and secondly, that failure to give the stay sought would result in the appeal, if successful, being nugatory (Caine Tai Investment Co Ltd v Ayala International Finance Limited 1983) 1 HKC 163).  If satisfied with these, the Court can proceed to exercise its discretion accordingly. 

8. In the present application, the defendant has to show that my discretion was arguably wrong, having based on wrong or improper considerations. 

The defendant's grounds for the present application

9. On the one hand, Ms. Yeung, the defendant's counsel, submits that this Court had upon making the said order on 19 December 2005 become functus (Brentwood Wig Manufactory Ltd v Richard F. Poncher [1966] HKLR 643; Sanyo Electric Trading Co Ltd v Leung Kwok-hing [1993] HKLR 253).  Therefore I should only look at the evidence provided to me on or before 19 December 2005.  I should not look at the defendant's subsequent affirmation. 

10. However, on the other hand, Ms. Yeung submits that the defendant's said affirmation should be duly considered.  It purported to reveal 2 things in his mind.  Firstly, the defendant had wrongly assessed his prospect of success because of the Court of Appeal decision in Chan Tin Shi.  Secondly, the defendant could not afford the appeal for not being legally-aided at that juncture. 

11. It is not easy to reconcile Ms. Yeung's contradictory submissions.  Up to and including 19 December 2005 when I made the said order, I was only given such evidence as presented by her.  Up to that juncture the defendant only sought a stay of execution without any appeal against the said judgment.  I had given the defendant's camp an opportunity for explanation but neither he nor his lawyers explained why.  I did not see any other probable conclusion to be drawn save that he willed what he did and it reflected his lack of intention to appeal.  So far Ms. Yeung has not told me what wrong or improper considerations had formed the basis of my discretion.   

The plaintiff's response

12. On the subject of discretion, the plaintiff's counsel submits that it is outside the scope of the defendant's present application to deal with the matter as if the 2 said circumstances had retrospectively existed on 19 December 2005.  The defendant has not shown how this Court had exercised its discretion wrongly or improperly up to and including 19 December 2005 when the said order refusing the stay of execution was made.  I agree with this submission. 

13. On the subject of prejudice, the plaintiff's counsel submits that the defendant could move, at no great inconvenience, to reside in the part of the premises under the Temporary Tenancy held from the government.  The Temporary Tenancy provided for a shop and a residential purpose.  The defendant's continual occupation of the other part under the Short Term Waiver would put the plaintiff at real risk of re-entry by the government.  I agree with this submission.  

The conclusion

14. I refuse the defendant's application.  There is no apparent reason why costs should not follow the event.  I order costs nisi to the plaintiff with certificate for one counsel.  The defendant's own costs will be assessed in accordance with legal aid regulations.

Dated this 12 April 2006