Tang Chai on v. Tang Chak Mo

DCCJ 2527/2020

[2025] HKDC 1605

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 2527 OF 2020

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DECISION

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1.This is the plaintiff’s Summons for a variation of Judgment order under Order 45, rule 6.

Background

2.This is a case concerning a land dispute and this court has handed down the Judgment on 6 November 2024 and the court ordered, inter alia, that the Defendant should give the Plaintiff the key(s) to the subject property:

“頒布禁制令，禁止被告人於第120約份2590地段 (“該物業”) 逐出原告人，包括命令被告人須即時給予原告人能容許原告人進出該物業的所有有關該物業的鎖匙”

3.On 15 November 2024, the Defendant has made an application for leave for appeal and for stay of execution but this was dismissed by this Court on 9 May 2025. The Defendant is currently seeking leave to appeal and for stay of execution from the Court of Appeal.

4.There is no dispute that the Defendant has, up to now, failed to give any keys of the subjective to the Plaintiff.

5.The plaintiff has taken out the current application to vary the order which effectively allows a fixing of a new time limit, i.e. 7 days after service of the proposed amended order, for compliance:

“頒布禁制令，禁止被告人於第120約份2590地段 (“該物業”) 逐出原告人，包括命令被告人須於由向被告人親自送達（或法庭容許的其他送達方法）本修訂命令起計7天內給予原告人能容許原告人進出該物業的所有有關該物業的鎖匙”

Legal Principles

6.The operation of Order 45, Rule 6 is as follows (Wah Sun Hong Limited v Wong Lee Yuk Ping Agnes (12/08/2016, HCA 874/2015, Re Ho Yuk Wah David (bankrupt) [2015] 2 HKLRD 603) :

a.  Order 45, rule 6 enables the court to give the respondent one last chance to comply with its order before the applicant may invoke the penal sanctions available in the court’s armoury.

b.  The burden is on the applicant to prove that an order had been made requiring the respondent to perform an act within a specified time and the respondent failed to do so.

c.  Once that is proved, the burden is then shifted to the respondent to show why he should not be required to comply with the order to perform the act, upon being given a second chance.

d.  The obligation to perform the act required had been determined and made an order of the court. Thus, in considering whether to exercise the discretion under this rule, there is no need for the court to revisit the appropriateness or otherwise of its previous order.

e.  The question is simply whether in all the circumstances the respondent should be excused from performing the act under its previous order. As the court’s orders are made to be complied with, such circumstances must be very rare indeed. A possible example would be impossibility of performance as a result of chance of circumstances.

Considerations

7.As stated above, there is no dispute that the order has not been complied with: the Judgment was dated 6 November 2024 and it is now more than 8 months since.

8.Thus, the burden is now on the Defendant to show “why he should not be required to comply with the order to perform the act, upon being given a second chance”.

9.Ms. Michelle L.H. Yuen, Counsel for the Defendant, submitted that the Defendant is currently seeking leave to appeal from the Court of Appeal, with a stay of execution application. However, she did not suggest that she would be relying on this as reasons why the Defendant “should not be required to comply with the order to perform the act, upon being given a second chance”. Clearly, she could not rely on this: no interim stay of execution was granted.

10.Ms. Yuen then quoted from the White Book 2025 (at paragraph 45/6/1) and submitted that Order 45, Rule 6 would not be entertained where it serves no useful “purpose”, i.e. if it was largely on the same terms as an order previously granted and no positive result can be expected. She also relied on the case Joe Zhixiong Zhou v Saif Partners li L.P. and Another (09/09/2019, HCCL 16/2016) [2019] HKCFI 2467.

11.I am somewhat mystified.

12.In the Saif case, the alleged infringer was maintaining the stance that he has fully complied with the order so he was resisting the application and thus “steadfastly refusing a second chance”. Clearly, if the alleged infringer was denying any infringement, the court would not bother to grant such application but took the view “that the precious resources of the court should be expended on either contempt proceedings…or in taking of the account where it will be open to the defendants to cross-examine the plaintiff…”

13.In the current case, the circumstances are entirely different: there is no dispute that the order has not been complied. Unless the Defendant’s position is that he is refusing a second chance and is instead inviting the Plaintiff to proceed directly to contempt proceedings, I see no basis why the court should not allow the Summons.

14.Of course, Ms. Yuen has not advanced that position.

15.Nevertheless, I note that the Court of Appeal has since granted leave to appeal and stay of execution pending appeal (upon the defendant’s undertaking to pay further damages should he failed) on 23 September 2025 (CAMP 98 of 2025).

16.Therefore, I would adjourn the Summons pending the outcome of the appeal with costs reserved.