Salazar Alma F. v. Chan Chue Kai and Another

HCLA 21/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

LABOUR TRIBUNAL APPEAL NO 21 OF 2012

(ON APPEAL FROM LABOUR TRIBUNAL CLAIM NO 4198 OF 2010)

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D E C I S I O N

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1.As far as I understand it, after trial, the learned Deputy Presiding Officer gave an award in favour of the claimant, Ms Salazar and ordered that the security money paid into court by Mr Chan should be transferred to the claimant in not later than 7 days. It is Mr Chan’s case that a stay of execution should be granted pending his application for leave to appeal.

2.I start by saying that in the present proceedings, ie HCLA 21/2012, the application for leave to appeal by Mr Chan and the other defendant, Madam Lung, is in fact an application for leave to appeal in relation to 11 interlocutory orders made before the final judgment of 14 December 2012.  The present application for stay of execution is therefore lodged before any leave to appeal application is even filed in relation to the final judgment.  Mr Chan tries to impress me that the application is urgent.

3.On the face of the papers before me, there may be some urgency because of the final judgement of the Deputy Presiding Officer which requires settlement of the judgment by way of setting off against the security monies in the Tribunal.  For the limited purpose of the stay of execution, despite it is not properly constituted, I proceed to consider the merits of this application.

4.For an application for stay, there are certain principles for the court to bear in mind.  First and foremost, a successful claimant should not be denied her fruit of the judgment unless on good grounds.  Some of the good grounds may be, eg the applicant for stay can show he has reasonable prospect of success or strong grounds of appeal.  The applicant may also show to the court that the appeal may be rendered nugatory if no stay is granted in the meantime.

5.I have considered the written submission of the applicant and his oral submission today.  I have similarly considered the written application of the claimant.  Even on the written submission of Mr Chan and his supporting affirmation, there is a reference to the case of Chow Chun Tin v Chow So Ngo [2010] 5 HKLRD 181 wherein the principles for granting stay of execution have been set out.  I take on board those principles and I specifically refer to principle 6 cited in the affirmation.  The existence of merely an arguable appeal cannot by itself amount to sufficient reason to justify a stay.  The existence of an arguable appeal, that is one with reasonable prospect of success, is the minimum requirement before a court would even consider granting a stay.  In other words, however exceptional the circumstances may be otherwise justifying a stay of execution, if the court is not convinced that there exist arguable grounds of appeal, no stay will be granted.

6.In the present application, Mr Chan placed a lot of emphasis on the point that the claimant is not a permanent resident of Hong Kong, that she may be away out of the jurisdiction, that she does not have any fixed assets in Hong Kong, and that it may be impossible for Mr Chan to recover the loss once she has got the judgment sum.  These may all well be true.  As for other points raised in the submission, eg incorrect home address, past record of not repaying debts, rude and aggressive attitude towards repayment and witness intimidation, these do not constitute sufficient bases for granting a stay.

7.The next thing which the court must consider is the merit of the intended appeal.  All the points set out in the supporting affirmation of Mr Chan filed on 17 December 2012 point to the final judgment, not the 11 interlocutory orders which are the subject of HCLA 21/2012.  There is nothing to show or assist the court to decide that there are reasonable prospects of success in relation to the 11 interlocutory orders.

8.In relation to the final judgment, at present this court does not possess the reasons for decision given by the Deputy Presiding Officer.  I lay no blame on the Deputy Presiding Officer because the final judgment was delivered only on 14 December 2012, ie last Friday.  The reasons given may be very simple and made orally.  Usually, Presiding Officers give detailed decisions when requested to do so or in the light of an intended appeal.  I also lay no blame on him for not giving an award or order in writing because the Labour Tribunal Ordinance requires him to do so only as soon possible and in any case, not later than 14 days after the date of the award or order which has not expired.  Be that as it may, I can only do my best to do justice to both parties.

9.I pay full regard to the submission of Mr Chan. Be that as it may, the points raised in his affirmation and submission are purely points of fact, and they hardly point to any error of law on the part of the Deputy Presiding Officer.  The burden in an application of this sort is always on the applicant, Mr Chan, in this case.  Under section 32 of the Labour Tribunal Ordinance, leave to appeal will only be granted on points of law and not points of fact.

10.Mr Chan can only say that the Tribunal gave oral judgment and the explanations were brief.  All that the Deputy Presiding Officer did was to prefer the evidence of the claimant.  In a trial, it is within the powers of a Presiding Officer who has the benefit of hearing the oral evidence and observing the demeanour of witnesses to decide questions of fact.  All I can see at present before me do not disclose arguable points of law, let alone reasonable prospect of success on appeal in relation to that final judgment.  In the premises, I dismiss this application for stay.

The claimant (respondent) appeared in person

The 1^st defendant (applicant) appeared in person