Secretary for Justice v. Leung Ka Shing
Read the full judgment text of DCCJ 3092/2006 on BabelCite. This District Court judgment.
1. The Defendant has two applications before me. The 1st application is for leave to appeal to the Court of Appeal under his summons filed on 10 April 2007. The Defendant seeks to appeal against the decision I made on 27 March 2007 wherein I dismissed his application to set aside the Default Judgment herein. The 2nd application is for a stay of execution in respect of the Writ of Possession & Fieri Facias combined issued herein on 16 November 2006, pending the outcome of the proposed appeal. The
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DCCJ 3092/2006 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 3092 OF 2006 ------------------------ BETWEEN
------------------------ Coram: Deputy District Judge R. Cheung in Chambers (open to public) Date of Hearing: 3rd May 2007 Date of Handing down Decision: 7th May 2007 ------------------------ DECISION ------------------------ 1.The Defendant has two applications before me. The 1st application is for leave to appeal to the Court of Appeal under his summons filed on 10 April 2007. The Defendant seeks to appeal against the decision I made on 27 March 2007 wherein I dismissed his application to set aside the Default Judgment herein. The 2nd application is for a stay of execution in respect of the Writ of Possession & Fieri Facias combined issued herein on 16 November 2006, pending the outcome of the proposed appeal. The summons for the stay of execution was filed on 18 April 2007. The 2nd application was first heard on 20 April 2007. On that occasion, I refused the Defendant's application for a stay of execution on the Writ of Fieri Facias. I ordered an interim stay of execution for the actual possession of the subject premises on the Writ of Possession, and then I adjourned the 2nd application to be heard together with the 1st application on 3 May 2007. 2.On the principles governing the exercise of my discretion in whether or not to grant a stay of execution pending appeal under the 1st application, Government Counsel has helpfully referred me to the case of Star Play Development Ltd. v. Bess Fashion Management Co. Ltd., HCA 4726/2001, 7 June 2002. I am guided by the principles adumbrated in that decision. 3.In Star Play Development Ltd. supra, Ma J., as he then was, was dealing with a situation where the Defendant was entitled to appeal as of right. The appeal is an event of certainty though yet to come. 4.In the present case, the Defendant will have to first obtain leave to appeal. Appeal is not as of right. His appeal is not a certain event. 5.Applying the principles adumbrated in Star Play Development Ltd., I consider that I should grant the Defendant the stay of execution that he has asked for if I were minded to grant him leave to appeal. There is a good reason to do so as otherwise the appeal would be rendered nugatory. Government Counsel has not indicated that should the Defendant's appeal be allowed, he would be allowed back to the subject premises without more. 6.However, I have come to the conclusion that I should refuse the Defendant's application for leave to appeal. I consider that the Defendant's proposed appeal has no realistic prospect of success. I can see no other reason that I should grant the Defendant such leave: Smith v. Cosworth Casting Processes Ltd., (1997) WLR 1538 and Ma Pik Yung v. Ko Chuen, HCMP 4303/1999, 8 September 1999 considered and applied. There is certainly no issue of public interest. 7.Since I would be refusing leave to appeal, I do not consider it right to order any stay of execution on the Writ of Possession on the basis that there is certainly going to be an appeal. 8.I appreciate that my refusal of leave to appeal cannot achieve finality in the appeal process. The Defendant still has 14 days from the date of my refusal to apply direct to the Court of Appeal for leave to appeal. Judging from his previous conduct, the Defendant will probably take this step. There is a possibility that the Court of Appeal will grant the Defendant leave to appeal. The Court of Appeal will be in a better position than me to judge the correctness of my decisions. If the Plaintiff recovers actual possession of the subject premises in the next couple of days, that would render the Defendant's application to the Court of Appeal for leave to appeal against my decision nugatory. 9.In the circumstances, I consider that there is a good reason to order an interim stay of actual possession for a short period of time to allow time for the Defendant to apply to the Court of Appeal. The Defendant should be able to renew his application for a stay of execution to the Court of Appeal. I consider it proper to order a stay of execution of actual possession of the subject premises up to 21 May 2007. 10.I consider that the Plaintiff should be entitled to the costs of the 1st application, as costs should normally follow the event. I consider that the Defendant is only partially successful in his 2nd application and he is asking for the Court's indulgence, and in the circumstances it is fair to make no Order as to costs on the 2nd application. 11.I would make the following Orders accordingly:
Representation: Miss Simone Leung, Government Counsel of Department of Justice, for the Plaintiff The Defendant: appearing in person |
Cases cited in this judgment
Further hearings and rulings under DCCJ 3092/2006