Peter Man Ho Laye v. Tam Ma Lai and Another

CACV 260/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 260 OF 2010

(ON APPEAL FROM HCA 1780 OF 2009)

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BETWEEN

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Before : Hon Cheung JA in Chambers

Date of Hearing : 26 May 2011

Date of Decision : 26 May 2011

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D E C I S I O N

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1.This is an unmeritorious application. It is clearly an abuse of process to renew the application before me for stay of execution of the judgment of Deputy Judge Au Yeung having failed twice previously before Judge Au Yeung and Kwan JA respectively.

2.It is not an answer to say that the application is justified by the discovery of yet further new evidence.  This is already the second disclosure of new evidence after trial.  The trial below was also marked by piecemeal and last minute disclosure of evidence.  In any event if the application is prompted by the new evidence, the proper approach should be an appeal against Kwan JA’s decision out of time.  Further if the contention is that the undertakings by the plaintiff (which were accepted by Kwan JA) are of no value to protect the defendants, then again the proper procedure should be to appeal against Kwan JA’s decision. 

3.Mr. Yau, solicitor for the defendants, referred to Order 59, Rule 10(6) namely,

‘ The powers of the Court of Appeal in respect of an appeal shall not be restricted by reason of any interlocutory order from which there has been no appeal.’

in support of his basis for the renewed application.

4.Looking at the wording of this Order it refers to ‘an appeal’.  The present application clearly is not an appeal.

5.In any event, I am not satisfied that the 1^st defendant has shown that she has a meritorious appeal (even with the new evidence) that I should stay the execution of the judgment pending appeal.

6.Accordingly the application is dismissed with costs which are to be taxed on an indemnity basis.

7.I further order that in relation to Legal Aid taxation of the defendants’ costs, the costs between solicitor and client are disallowed.

Miss Elsie Yiu, instructed by Messrs Christine M. Koo & Ip, for the Plaintiff

Mr. Yau Chap Yin of Messrs Raymond Cheung & Chan, assigned by the Director of Legal Aid, for the 1^st and 2^nd Defendants