XCHRX CHAN PUI YIU v. BOND STAR DEVELOPMENT LTD.

1996 MP No. 2068

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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INTRODUCTION

1. On 6th June, on the application of Bond Star Development Ltd. ("Bond Star"), the Lands Tribunal ordered Chan Pui Yiu to give up possession of premises in North Point forthwith. On 18th July, Mr. Chan filed a notice of appeal to the Court of Appeal against the order for possession. However, in the meantime, Mr. Chan had applied, by an originating summons filed on 27th June, to the High Court for a stay of execution on the order for possession. It is that originating summons which is now before me.

STAY OF EXECUTION UNDER ORD. 59 r. 13

2. According to the originating summons, the stay of execution is sought under Ord. 45 r. 11. However, Mr. Chan is applying for leave to amend the originating summons to claim the stay of execution under Ord. 59 r. 13 as well. I refuse him leave to amend the originating summons to enable him to make that claim. The jurisdiction to stay execution of an order of the Lands Tribunal under Ord. 59 r. 13 is limited to "the court below [i.e. the Lands Tribunal] or the Court of Appeal or a single judge [i.e. a single judge of the Court of Appeal]." It follows that the High Court has no jurisdiction under Ord. 59 r. 13 to stay the execution of an order of the Lands Tribunal. Accordingly, Mr. Chan's summons filed on 18th July for leave to amend the originating summons must be dismissed.

STAY OF EXECUTION UNDER ORD. 45 r. 11

3. Ord. 45 r. 11 enables the court to stay the execution of an order "on the ground of matters which have occurred since the date of the ... order." There are three things which have happened since the date of the order of the Lands Tribunal. First, Mr. Chan has filed his notice of appeal. However, that would not justify a stay of execution under Ord. 45 r. 11. If a litigant wishes to have a stay of execution pending an appeal to the Court of Appeal, he should apply either to the court or tribunal from which the appeal is being brought, or to the Court of Appeal to which the appeal is being made. Since that right is preserved by Ord. 59 r. 13, there is no justification for invoking the jurisdiction of a third court, namely the High Court.

4. Secondly, Bond Star originally acquired the buildings in which the premises are for redevelopment. They have recently entered into a contract with a demolition contractor for the demolition of the buildings in which the premises are. However, that is more a reason for not granting a stay rather than a reason for granting one. That is because delay in the demolition work will result in Bond Star having to make daily payments to the demolition contractor, and a stay of execution would put back Bond Star's plans for the redevelopment of the site. I appreciate, of course, that if a stay is not granted, the premises will not be able to be restored to Mr. Chan even if his appeal would otherwise have succeeded, because they will by then have been demolished. But it is obvious, I think, from the findings of fact made by the Lands Tribunal that the only reason why Mr. Chan has been anxious to retain an interest in the premises was not because he wanted to occupy the premises, but because he wanted to be able to negotiate a payment from Bond Star who need vacant possession of the land free from sitting tenants. It follows that if the appeal is eventually allowed, Mr. Chan can be adequately compensated for Bond Star's inability to restore the premises to him by the payment of a sum of money. That is because his compensation will reflect his loss of bargaining power to negotiate a substantial payment with Bond Star as a result of the demolition of the premises in the meantime.

5. Thirdly, two matters have been discovered since the hearing before the Lands Tribunal which are alleged to show that the Lands Tribunal proceeded upon a misapprehension of the facts. First, at the hearing before the Lands Tribunal, it was common ground that the premises were included in the buildings owned by Bond Star. Mr. Chan claims to have discovered since the hearing documents which suggest that that may not be so. Secondly, Mr. Chan's tenancy agreement of the premises had not apparently been translated by the date of the hearing before the Lands Tribunal. A translation of it has now become available. It is alleged on Mr. Chan's behalf that the difference between what the Lands Tribunal thought were the terms of the tenancy and what the terms of the tenancy in fact were could have affected the outcome of the case. However, these are matters which go to whether or not the appeal from the order made by the Lands Tribunal is likely to be successful. They are not central to the issue which I believe I have to decide today, which is whether the injustice which Mr. Chan would suffer if a stay of execution was not granted, but if his appeal was allowed in circumstances in which the premises could not be restored to him, is greater than the injustice which Bond Star would suffer if a stay of execution was granted, but if Mr. Chan's appeal was eventually dismissed. I do not believe that there is anything in the judgment of Hunter J. (as he then was) in Tam Ho Man v. Wong Kwok Tai (HCA 4736/85), on which Mr. Kenny Chan for Mr. Chan relied, which obviates the need for this balancing exercise to be conducted. For the reasons I have already given, I have no doubt that the scales are heavily weighted in favour of permitting Bond Star to proceed with the demolition of the buildings.

CONCLUSION

6. Accordingly, I refuse to grant Mr. Chan a stay of execution under Ord. 45 r. 11, and his originating summons must accordingly be dismissed. It is still open to him, of course, to apply to the Court of Appeal for a stay of execution under Ord. 59 r. 13, but I discourage him from doing so, because I suspect that the Court of Appeal would refuse him a stay for the same reasons as I have.

7. Finally, the originating summons was issued for hearing in chambers. The practice of originating summonses being issued for hearing in chambers is not an infrequent one. That is why the judgment of Le Pichon J. in Mayluck Investment Ltd. v. Lee Yih Ping (HCMP 1537/95) was a timely reminder to the profession not to confuse interlocutory summonses (which are heard in chambers) with originating summonses (which are heard in court). All I need do is to reinforce her wish that the remarks of Godfrey J. (as he then was) in Yau Fook Hong Co. Ltd. v. The Commissioner of Inland Revenue (HCMP 1340/88) do not go unheeded.

(Brian Keith)

Judge of the High Court