MAK HOI CHU v. LUI CHI YIN AND ANOTHER

DCPI 1861/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

PERSONAL INJURIES ACTION NO. 1861 OF 2009

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D E C I S I O N

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1.  I think the authorities are clear that the reasonable prospect of success required under section 63A of the District Court Ordinance for leave to appeal to be granted means that the prospects of succeeding in the appeal must be reasonable, therefore, more than not fanciful, but without having to be probable. The applicant for leave is required to show more than just an arguable case, and that the appeal has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.

2.  Having heard the submissions, I am unable to say that the 1^st Defendant’s appeal has no reasonable prospects of success or no merits at all.  I will accordingly give leave as sought, with costs in the cause of the appeal.

3.  Regarding the stay of execution application, the principles are also clear, that the service of a notice of appeal does not by itself have any effect on the right of the successful party to act on a judgment in his favour and to enforce the order of the court below.  The most important consideration in respect of whether a stay of execution should be granted is whether there are strong grounds of the proposed appeal, and that hurdle is higher than that of the chances of success for considering whether leave to appeal should be granted. The court will not grant a stay unless it is satisfied that there are good reasons for doing so.

4.  In this case, the 1^st Defendant has not shown any good reason at all why a stay should be granted, and therefore, I am not prepared to exercise my discretion in favour of a stay pending the appeal.