Hui Kee Chun v. The Privacy Commissioner for Personal Data

CACV 401/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 401 OF 2007

(ON APPEAL FROM HCA 1980 OF 2006)

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Before : Hon Cheung JA in Chambers

Date of Hearing : 27 November 2008

Date of Decision : 27 November 2008

Date of Reasons for Decision : 2 December 2008 

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REASONS FOR DECISION

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Stay of judgment pending appeal

1.I refused the plaintiff’s application for a stay of execution of the judgment of Deputy Judge Louis Chan.  The Judge dismissed the plaintiff’s appeal against the Master’s decision to strike out his statement of claim and action.  The Judge also refused the plaintiff’s application to stay the judgment. 

2.The specific concern of the plaintiff in this application was on the execution of the costs order made by the Judge against him. 

Principles

3.The principles on stay of judgment pending appeal are clear.  An appeal does not by itself stay the judgment.  The appellant has to justify the stay by showing, for example, his appeal will be rendered nugatory if the judgment is not stayed.  Ultimately the exercise of discretion will depend on whether the appellant has shown that he has a high prospect of success of the appeal so that justice requires the position to be preserved pending the determination of the appeal.

My view

4.As the appeal remains to be heard at the beginning of next year, I would refrain from commenting on the merits.  While I have some reservation on the issue of ‘public office’ and whether the plaintiff’s cause of action was based on ‘misfeasance of public office’, ultimately the Judge’s decision was that the action was not sustainable.  The fact that the defendant had issued the enforcement notice against the plaintiff does not mean that the defendant had done some ‘wrongful acts’ (using the plaintiff’s own words) against him.  The Judge’s reference to the decision of the Administrative Appeals Board which affirmed the decision of the defendant was intended to show that the arguments relied upon by the plaintiff in support of the validity of his claim were not sustainable.  The plaintiff has not shown at this stage of the proceedings that his chance of success in the appeal is high.  Although the plaintiff’s amended notice of appeal asked for leave to issue an amended statement of claim, the proposed amendment was not before this Court.

5.The was no serious argument that the plaintiff’s appeal would be rendered nugatory if the costs order is now enforced.

6.The plaintiff stated that he is now on social security and will not be able to pay for the costs.  It is for the defendant to decide on the issue of enforcement but the plaintiff’s financial condition cannot be a proper basis for staying the judgment in the absence of a high prospect of success of the appeal.

7.The plaintiff also referred to the defendant’s demand for security for costs of the appeal against him.  This was not an issue before the Court and was a separate issue from the plaintiff’s present application.

Plaintiff, in person, present

Mr. Fred Kan of Messrs Fred Kan & Co for the Defendant