In Re Application for Leave To Appeal and A Stay of Execution, Ex Parte

HCMP000867/1996

IN THE COURT OF APPEAL

1996, No.867
(Miscellaneous Proceedings)

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Coram: Bokhary, J.A. in Court

Date of hearing: 3 April 1996

Date of Judgment: 3 April 1996

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J U D G M E N T

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Bokhary, J.A.:

1. This is an application for an extension of time for appealing and for a stay of execution pending appeal.

2. The parties are agreed as to what matters are worthy of consideration in the exercise of my discretion whether or not to grant an extension of time. They are the length of delay; the reasons for the delay; the chances of the appeal succeeding if an extension is granted; and the degree of prejudice to the opposite party if an extension is granted.

3. If it were merely to be decided by reference to the length of delay or even the reason for it, I would be disposed to grant an extension. But it does not end there because when one looks at the appeal's prospects of success, it is conceded by the applicant that she cannot succeed unless she manages to persuade the Court of Appeal to reverse the trial judge's findings of primary fact.

4. That sort of thing is always an uphill task. And in the present case, the prospects of success in that regard strike me as very slim indeed.

5. Then there is also the question of prejudice to the opposite party. The matter has been outstanding quite a long time now. And I do not feel justified, in all the circumstances, in acceding to an application which will result in its being dragged out for even longer.

6. I do not propose to give my reasons at length. They are generally not necessary in an application like this anyway.

7. I will simply say that I am generally persuaded by all the points which were ably made in the skeleton argument put in on behalf of the plaintiff who opposed this application.

8. Even if I were to grant an extension, I would have some doubt as to whether a stay would be appropriate. Certainly, if I were to grant a stay I would have done so on terms. And, so far, the defendant has not even complied with the terms of the limited stay granted by the trial judge.

9. For the applicant, Mr Chan has said everything that can possibly be said, and has done so very ably.

10. But really the circumstances are too strong for him; and I feel obliged to dismiss the summons altogether, which I do. All that remains is the question of costs - in addition, of course, to thanking counsel for their assistance.

(K Bokhary)

Justice of Appeal

Representation:

Mr K M Chong (instructed by M/s Sousae & Hoosen) for the plaintiff/respondent

Mr Maurice J Chan (instructed by M/s Norman M K Yeung & Co) for the defendant/applicant