Secretary for Justice v. To Kan Chi and Others

FACV000008/2000

FACV No. 8 of 2000

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 8 OF 2000 (CIVIL)

(ON APPEAL FROM CACV NO. 32 OF 1999)

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Court: Mr Justice Bokhary PJ (sitting as a single permanent judge)

Date of Hearing: 18 July 2000

Date of Decision: 18 July 2000

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D E C I S I O N

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Mr Justice Bokhary PJ:

1. Tsing Wan Kun appears to be a Taoist temple. I will refer to it as "the Kun". It is located within the Tsing Shan Monastery complex in Castle Peak.

2. There is a dispute over funds in court standing in the name of the Kun. The Government is involved as parens patriae, laying claim to the Kun and its assets on behalf of the public. The Secretary for Justice represents the Government, and is the appellant. As for the respondents, the 1st respondents are the managers of a t'so, while the 2nd respondents are the representatives of a clan. They were the plaintiffs at first instance. And they have obtained judgment from the trial judge to the effect that the Kun was the name in which the t'so and clan held properties, including the properties which have been turned into the funds in court standing in the name of the Kun.

3. Dismissing the Secretary for Justice's appeal against that judgment, the Court of Appeal affirmed the same. The Secretary for Justice is taking the case to the Court of Final Appeal. The hearing of the appeal to the Court of Final Appeal is due to begin 28 November this year.

4. There are two applications before me as a single permanent judge. One of them is an application by the respondents for a further extension of time for filing their printed case. They ask for up to the end of September this year. But the last day of that month being a Saturday, they would settle for an extension up to Friday, 29 September.

5. Mr Edward Chan SC for them says that they would be under enormous pressure if they did not have until 29 September. On the other hand, Mr Patrick Fung SC for the Secretary for Justice says that his client would be under enormous pressure if the respondents' printed case were not filed by 22 September at the latest. He says that his client is likely to want to file a supplemental case, and points out that the same would have to be filed in time for the Court to study it before the hearing of the appeal begins on 28 November.

6. Both Mr Fung and Mr Chan are of course able and responsible counsel. I take what each of them says very seriously. What I am about to order may bear some appearance of splitting the difference. But I am not doing that. I grant an extension up to 27 September. That is a Wednesday. So such an extension would put the respondents' printed case in the hands of the Secretary for Justice's legal team for a couple of days before the weekend.

7. So much for the extension of time. I turn now to the application for a stay.

8. Section 26 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides as follows:

"(1) Where a judgment appealed from requires the appellant to pay money or perform a duty, the Court of Appeal or the Court, as the case may be, shall have power, when granting leave to appeal or subsequently, either to direct that the judgment shall be carried into execution or that the execution shall be suspended pending the appeal.

(2) Where the Court of Appeal or the Court directs the judgment appealed from to be carried into execution, the person in whose favour it was given shall, before the execution, enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal.

(3) Where the Court of Appeal or the Court directs that the execution of the judgment appealed from shall be suspended pending the appeal, the appellant shall enter into good and sufficient security, to the satisfaction of the Court of Appeal or the Court, as the case may be, for the due performance of such order as the Court shall make in respect of the appeal."

9. The stay of execution which the Secretary for Justice seeks does not come within s.26. That section applies to judgments which require the appellant "to pay money or perform a duty". But the judgment appealed from does not require the Secretary for Justice to pay money or perform a duty. What it did was to declare that certain properties and certain funds in court belonged to the respondent t'so and the respondent clan. And what the Secretary for Justice wants to prevent is any distribution of those funds before the determination of her appeal against that declaration. Hence her application for a stay of the execution of Court of Appeal's judgment so declaring.

10. As it happens, the respondents are prepared to give an undertaking not to seek the release of the funds in question until after the determination of the appeal. But it is important for litigants to know what the position would be in the absence of any such undertaking.

11. In my judgment, the Court of Final Appeal has inherent jurisdiction to grant a stay such as the one which the Secretary for Justice seeks. It has inherent jurisdiction to grant such a stay in order to protect its process by seeing to it that its judgment, if ultimately in favour of the Secretary for Justice, would not be rendered nugatory by a prior distribution of the contested funds.

12. Section 46(2) of the Hong Kong Court of Final Appeal Ordinance provides as follows:

"In an application for leave to appeal or an appeal, any incidental order or direction, not involving the decision of the application or appeal, any interim order necessary to prevent prejudice to the parties and any order for security for costs or for the dismissal of an application or appeal for default in furnishing security so ordered, may be made or given at any time by a single permanent judge."

13. In my judgment, the inherent jurisdiction of the Court of Final Appeal to grant a stay such as the one which the Secretary for Justice now seeks is a jurisdiction which can be exercised by a single permanent judge. This is because an order for such a stay is an incidental and interim order necessary to prevent prejudice to a party. And that brings it within s.46(2).

14. As it seems to me in all the circumstances, the stay sought is just and convenient. I grant a stay until the determination by the Court of Final Appeal of the Secretary for Justice's appeal or further order in the meantime. It remains only to thank counsel on both sides for their assistance, and to hear them on costs.

[Submissions on costs]

15. The Secretary for Justice seeks the costs of both applications. The respondents asks that the costs of both applications be made costs in the appeal. My decision is this: the costs of the stay application will be costs in the appeal, while the costs of the extension application will be to the Secretary for Justice in any event.

Representation:

Mr Patrick Fung SC (instructed by the Department of Justice) for the appellant, the Secretary for Justice

Mr Edward Chan SC (instructed by Messrs Miller Peart) for the respondent t'so and the respondent clan