CHOW KIN HANG ALI v. SECRETARY FOR JUSTICE FOR AND ON BEHALF OF FOOD AND ENVIRONMENTAL HYGIENE DEPARTMENT

CACV 99/2023, [2023] HKCA 1246

On Appeal From [2023] HKDC 237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 99 OF 2023

(ON APPEAL FROM DCEC NO 1413 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicant’s application for a stay of execution of the Judgment of H H Judge Levy dated 10 March 2023 (“the Judgment”) pending appeal.

2.  Having considered the papers before us, we consider that it is appropriate to deal with the application on the basis of written submissions only without a hearing pursuant to Order 59, rule 14A of the Rules of the High Court, Cap 4A.

BASIC FACTS

3.  The Applicant was a civil servant working as a foreman (管工) in the Food and Environmental Hygiene Department (“the Department”). Arising out of an unrelated previous incident which occurred in March 2015, the Applicant developed “reactive depressive and anxiety symptoms including lowish and irritable mood, negative rumination, somatic symptoms and poor sleep” (反應性抑鬱和焦慮抑鬱症狀), and was diagnosed to be suffering from “adjustment disorder” (適應性障礙).

4.  On 8 June 2017, he received notification from the Department that, starting from 20 June 2017, he would be posted to work in a newly created unit called the District Enforcement Team (專責執法隊). The Applicant was not satisfied with the proposed work arrangement and requested for exemption from the new posting on the ground of health reasons, but his request was not acceded to.

5.  On 20 June 2017 (the commencement date of his new posting), the Applicant made an oral request to his supervising officer (one Mr Chan) to be transferred out of the District Enforcement Team, and was told to make a written application for the proposed transfer and provide documents in support of the application. The Applicant was not happy with the reply. He went to the roof of the building in which North District Environment Hygiene Office was situated and threatened to jump off from the roof. He also posted a banner complaining that he was being forced to work in the District Enforcement Team. Later, some police officers and firemen arrived at the scene. Eventually, the Applicant was escorted to North District Hospital for treatment.

6.  The Applicant returned to work on 29 June 2017, and made a written application to be transferred out of the District Enforcement Team. The Applicant’s application was granted on 11 July 2017, and he was posted to do office work instead.

7.  On 14 June 2019, the Applicant commenced proceedings against the Department[1] in the District Court (DCEC 1413/2019) to claim compensation under the Employees’ Compensation Ordinance, Cap 282 (“the Ordinance”) in respect of an alleged accident on 20 June 2017. At §3 of Form 1, the Applicant alleged that the Department, on and prior to 20 June 2017, posted him to work in the District Enforcement Team in disregard of the fact that he was not suitable for such posting due to health reasons. He further alleged that the Department was guilty of serious negligence in making or giving the work arrangement or direction for or to him, causing him to suffer mental or psychiatric illness.

8.  The Applicant’s claim was tried by the Judge on various dates in October and November 2022. By the Judgment, the Judge rejected the Applicant’s claim, finding, inter alia, that:

(1)  the Applicant did not meet any “accident” arising out of and in the course of his employment on 20 June 2017; and

(2)  the Applicant’s mental or psychiatric illness was a pre-existing one, and he failed to show that he suffered any personal injury by accident arising out of and in the course of his employment.

9.  Accordingly, the Judge dismissed the Applicant’s claim against the Respondent with costs, on a nisi basis, to be taxed if not agreed.

10.  On 28 March 2023, the Applicant filed and served a Notice of Appeal against the Judgment. No ground of appeal was given in the Notice of Appeal.

11.  On 18 April 2023, the Judge dismissed the Applicant’s application for a stay of execution of the Judgment pending appeal.

12.  By a summons dated 28 April 2023 filed in the Court of Appeal, the Applicant renewed his application for a stay of execution of the Judgment pending appeal.

13.  On 15 May 2023, the Applicant filed a Supplemental Notice of Appeal pursuant to the direction of the Registrar of Civil Appeals dated 27 April 2023. In the Supplemental Notice of Appeal, the Applicant raised a total of 10 grounds of appeal, numbered (a) to (j), against the Judgment.

DISCUSSION

14.  The principles governing an application for a stay of execution of a judgment pending appeal are well established.

(1)  The applicant is required to demonstrate a “good reason” for a stay of execution.

(2)  Generally speaking, the existence of merely an arguable appeal cannot by itself amount to a sufficient reason to justify a stay. It is the minimum requirement before a court would even begin to consider granting a stay.

(3)  In other words, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted however exceptional the circumstances may otherwise be justifying a stay of execution.

(4)  On the other hand, the existence of a strong appeal or a strong likelihood of success will usually by itself enable a stay to be granted because this would constitute a good reason for a stay.

(5)  In most cases, where the court is faced with simply the existence of an arguable appeal, it becomes necessary for the applicant to provide additional reasons as to why a stay is justified.

(6)  Commonly, this is done by demonstrating that without a stay the appeal would be rendered nugatory, for example, because of an appreciable risk that the respondent to the appeal would not be able to repay in the event of a successful appeal against a money judgment, or because the failure to grant a stay would have a serious deleterious effect on the applicant.

(7)  In considering an application for a stay pending appeal, it would be impractical and even undesirable for the court to go deeply into the merits or strengths of the appeal, although the court must still form a preliminary view of these aspects.

See the judgment of Ma J (as he then was) in Stay Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84, at §§9-10.

15.  In relation to the merits of the appeal, the Applicant has raised 10 grounds in the Supplementary Notice Appeal, raising a variety of complaints, including procedural unfairness, allegations of impropriety on the part of the Judge and/or the Respondent’s counsel, and allegations of bias/apparent bias on the part of the Judge. Those grounds do not directly challenge the critical findings of the Judge in the Judgment, namely, that the Applicant did not meet any “accident”, or suffer any “personal injury” by accident, arising out of and in the course of his employment on 20 June 2017. In view of the fact that the appeal will be heard and determined in due course, it would not be appropriate for us to go deeply into the merits of the appeal. It suffices for us to state our provisional view, having considered the grounds contained in the Supplemental Notice of Appeal and the submissions advanced by Ms Carol Lee on behalf of the Respondent, that the Applicant has failed to show an arguable appeal.

16.  Further, the Applicant has failed to show that without a stay, his appeal will be rendered nugatory or he will suffer any serious deleterious effect. The Judgment does not require the Applicant to do any positive act, save that he is ordered to pay the Respondent’s costs to be taxed if not agreed. There is no evidence adduced by the Applicant that he is unable to pay the Respondent’s costs, or has any real or substantial difficulty in paying those costs. Should the Applicant eventually succeed in his appeal, there is no reason to believe that the Applicant will not be able to recover the same from the Respondent.

17.  In all, the Applicant has failed to demonstrate any “good reason” for a stay of execution of the Judgment pending appeal.

DISPOSITION

18.  The Applicant’s summons dated 28 April 2023 is dismissed.

19.  There is no apparent reason why costs should not follow the event in the present case. Accordingly, we make an order that the Applicant shall pay the Respondent’s costs in resisting the Applicant’s summons, such costs to be summarily assessed. The Respondent has lodged a costs statement dated 4 August 2023, claiming costs in the sum of HK$18,814. We have considered the items of costs claimed by the Respondent in the costs statement. They appear to us to be reasonable and are allowed in full. The above order as to costs (including the assessment of costs) is an order nisi which shall become absolute unless an application is made to vary the same within 14 days from the date of this judgment.