Yu Kit Chiu and Another v. Chan Shek Woo t/a "陳潮昌士多"

DCCJ 5488/ 2003

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 5488 OF 2003

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BETWEEN

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JUDGMENT ON DEFENDANT'S
APPLICATION FOR STAY OF EXECUTION

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Coram : Deputy District Judge E. Yip in Court

Date of Hearing : 12 December 2005

Date of Judgment : 19 December 2005

Introduction

1.In Chan Tin Shi v Li Tin Shung CACV 71 of 2003 the Court of Appeal ruled that as at 1 July 1997, new leases have been granted by the HKSAR government to the registered owners of lands north of Boundary Street.  Adverse possession has to commence afresh.     

2.The plaintiff owned land of which the defendant was in adverse possession.  On 9 August 2005, the plaintiff obtained summary judgment for possession of land (“the subject-land”) and damages for trespasses to be assessed.  The defendant’s application for stay of execution was adjourned pending affirmations to be filed.  The defendant never lodged any appeal against the judge’s decision.  It is already out of time.  The defendant only applies for stay of execution today.   

Defendant’s submissions

3.Ms Yeung submits as follows:

(1)	The defendant has an arguable case in the summary judgment proceedings, as seen from the Court of Final Appeal’s leave granted to hear the appeal in Chan Tin Shi;
(2)	The defendant and his family have lived there for over 40 years.He has limited financial means for alternative residence;
(3)	The plaintiff will suffer no hardship even if the defendant stays on.

Plaintiff’s submissions

4.Mr. Chong submits as follows:

(1)	The starting point is that the plaintiff should be able to take all legitimate measures to enforce the judgment.  Only in exceptional circumstances should he be deprived of the fruits of the judgment he had obtained by being prevented from levying execution (per Ma CJHC in Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104, at 108-9).  The defendant’s application does not come with any application for appeal against the summary judgment. He is only seeking to stay on as long as possible;
(2)	The defendant fails to comply with the judge’s order (para. 1, Stay Bundle p. 2) to make his son, who was an occupant there, file an affirmation of financial circumstances;
(3)	The defendant had applied for, with the concurrence of the plaintiff, and been granted on 18 December 1986 a Short Term Waiver (“S.T.W. 1180”) to operate a shop there.  S.T.W. 1180 (Stay Bundle p. 36) reserved the right of re-entry by the government upon breach of this covenant, among others.  The residential user by the defendant is and was in breach of this covenant.  The government may re-enter at any time unless this user discontinues;

My view

5.Ms Yeung’s has no idea why there was never any application for appeal.  She proposes filing it if stay is granted.  I regard it obvious that the defendant does not intend to appeal but just wants to stay on as long as possible.  As the matter stands, whatever decision pronounced by the Court of Final Appeal cannot benefit the defendant.

6.Given the present state of events, I have to consider whether to grant a stay so as to avoid injustice, prevent abuse, preserve the dignity of the court or to facilitate the administration of justice (per Ma CJHC in Credit Lyonnais, at 107). 

7.The defendant has lived there for over 40 years.  He has no alternative residence.  He stated (in para. 3 of his 2nd affirmation, dated 27 July 2005, Order 14 Bundle p. 125) that his son could only earn a living for his own family at the very most.   The son’s couple operated the shop, earning a yearly salary of $144,400 and a yearly net profit of $36,788 (Stay Bundle p. 13).  Mr. Chong comments that the defendant or his son should have provided more information.  But I think he had already provided basically what I have to know.      

8.I do not see any reason to deprive the plaintiff of a valuable property right on the grounds of the defendant’s long history of occupation and limited means.  It is a sad situation but not one for which the plaintiff’s right should be sacrificed.     

9.I think that a stay will also subject the plaintiff to grave hardships.  There is a real risk of the government’s re-entry due to the defendant’s breach of the user of the Short Term Waiver.  The Court should not make an order countenancing a breach of the covenant.   

Conclusion

10.I dismiss the defendant’s application for stay of execution.  There is no apparent reason why costs should not follow the event.  I order costs nisi to the plaintiff with one certificate for counsel (as Mr Chong so indicates).  The order will become absolute after 14 days from today. 

Dated this 19 December 2005

Mr. Chong Kai Man and Ms. Emma Wong , instructed by M/s Liu, Choi & Chan for 1^st and 2^nd Plaintiffs

Miss Vivian Yeung Ming Fung, instructed by M/s Wong , Kwan & Co. for Defendant