LEE WAI HO v. FUNG KUI CHUEN

CACV 208/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2014

(ON APPEAL FROM HCAP NO. 21 OF 2011)

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REASONS FOR DECISION
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Hon Cheung JA (giving Reasons for Decision of the Court) :

1.  We refused the defendant’s application for stay of execution of the judgment of Mimmie Chan J dated 19 August 2014 pending the hearing of the appeal which is due to start on 23 June 2016. These are our reasons.

2.  This is very much a late application.  The notice of appeal was issued on 24 October 2014.  The plaintiff had applied for enforcement of the judgment since 5 November 2014. The summons to stay was only issued before this Court on 21 March 2016 after the defendant had previously failed in two attempts in the Court of First Instance and the District Court in May and July 2015 to stay the execution proceedings for the possession of the premises.  There was no appeal from these refusals.

3.  Quite apart from the delay, we are not satisfied with the merits of the application.  The relevant principle is whether the appeal will be rendered nugatory if the judgment below is not stayed.  Inevitably, the Court has to consider the merits of the appeal.  In view of the pending appeal it is not appropriate to go into a detailed discussion.  This Court has already considered the merits of the defendant’s appeal when ordering him to pay security of the costs of the appeal.  We maintain the view expressed there. 

4.  As to the additional ground that the Judge below had not properly considered the declaration on the will by the solicitor who witnessed the execution by the deceased and the presumption arising from such a declaration, the Judge had considered this matter at paragraphs 87 to 90 of the judgment.  In any event, without the solicitor giving direct evidence, this is ultimately a matter of weight only, to be considered together with the other evidence relating to the deceased’s state of mind.  As to the ground that the Judge had ignored the evidence of the deceased allowing the defendant to use her bank safe, it was conceded that the then counsel for the defendant (not his present counsel) had not taken this point in his written closing submission below.  As the matter now stands the defendant has not demonstrated that he has a strong appeal.

5.  We are not satisfied that the appeal will be rendered nugatory.  If the defendant is successful in the appeal, he will still be able to propound the will made in his favour.  It is not seriously put forward that if the order for possession is enforced the defendant will be rendered homeless. We are not satisfied such a drastic consequence will happen.  The issue really boils down to the narrow point of whether he should move from the premises which he has lived for the past 40 years and which is the subject matter of the will.  As the matter now stands the defendant has not really put forward any argument of substance which would cause us to exercise the discretion in his favour.  Accordingly, the application was refused with costs to the plaintiff, including the costs of the defendant’s summons to adduce his affirmation which we had allowed, to be taxed if not agreed.