SIU KOON FUNG AND OTHERS v. SHUN SHING CONSTRUCTION & ENGINEERING CO. LTD.

HCLA 1/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO. 1 OF 2002

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO. 3909,
4022 AND 4702 OF 2001)

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D E C I S I O N

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1. This is an application for interim stay of execution pending appeal to the Court of Appeal. The application for leave to appeal was filed on 9 July 2002 in respect of my judgment of 5 July 2002. In my judgment, I dismissed a certain part of the appeal against the award of the Labour Tribunal made in LBTC 3909/2001, LBTC 4022/2001 and LBTC 4704/2001. The final version of the award was dated 30 January 2002.

2. The subject matters of the pending appeal are payments due to the Respondents in respect of their services rendered in March and April 2001. I refer to my judgment of 5 July 2002 regarding the background of the case.

3. This application is made on an ex parte basis because the Appellant wishes to prevent the Respondents from obtaining payment out of monies previously paid into court. It is intended that the stay, if granted, would only be in force up to an inter partes hearing. The Appellant agreed to issue an inter partes summons for stay of execution.

4. In support of the application for stay, the Appellant argued that the appeal would be rendered nugatory if no stay is ordered. I accept that if the Appellant could establish that, the court will normally grant a stay pending appeal.

5. However I am not satisfied that the Appellant has adduced sufficient evidence to show such a risk. The only relevant paragraph in the affirmation of Lin Ho Ming Edmond filed in support of the application is paragraph 22 thereof. It contained bare assertions that it would be very difficult for the Appellant to locate the Respondents and that the latter would not have the resources to repay the money.

6. In my judgment, a successful litigant is usually entitled to the fruit of a judgment in his favour. If the court were to withhold that, there must be cogent evidence before the court to justify the conclusion that but for a stay, an appeal would be rendered nugatory. Whilst these Respondents might be construction site workers, I am not prepared to infer therefrom that they could not be located at the addresses given by them to the court. As to their resources, it is to be noted that in respect of most of the Respondents, the sums in question are less than $20,000.00. As I said, the appeal is in respect of about 2 months' wages for each worker. Even taking into account of the general economic situation in Hong Kong, I am not satisfied that on the flimsy evidence put before me that all the Respondents would be unable to repay the sums in question if the Appellant succeeds in the appeal.

7. The Appellant also referred to the cost for recovery being out of proportion. I do not think this is a relevant consideration in assessing whether a stay is to be granted. Even if I am wrong and such factor should be taken into account, I think this is outweighed by the prejudice caused to the Respondents by such a stay. One must bear in mind that on the findings made by the Tribunal (as upheld by this court on appeal), these sums were due to the Respondents in respect of their labour and services rendered in March and April 2001. The Appellant had promised to pay them upon the default of their employer and it was on such promise that the Respondents continued to work in the construction site of the Appellant. These sums should therefore have been paid to them a long time ago. I can readily see the hardship suffered by the Respondents if they were prevented from getting their monies by a further stay pending appeal.

8. On balance, I do not think the Appellant has established a good case for stay of execution. In the exercise of my discretion, I refuse to grant an interim stay.