Chuk Yau-cheong v. Lee Miu-ying
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CACV000014/1979
----------------- Coram: Roberts, C.J., Huggins, J.A., and McMullin, J. Date of Judgment: 27 June 1979 ----------------- JUDGMENT ----------------- Roberts, C.J.: 1. The appellant, CHUK Yau-cheong (who was the defendant at the trial), applies for an order for an extension of a stay of execution for three months granted by Judge Jones, pending the hearing of the appeal by this Court against a decision delivered by Judge Jones on 8th January, 1979. 2. On the 8th of January, Judge Jones ordered that possession of Flat No. 4, Mei Kung Building, Mei Kung Street, Kowloon, be delivered to the plaintiff LEE Miu-ying and that there should be a stay of execution for three months, subject to payment into court of all arrears of rent and mesne profits within seven days and of $454.50 on the 5th day of each month until delivery of vacant possession. Although the stay granted by the judge ran only until the 8th April, 1979, nevertheless mesne profits have continued to be tendered by the appellant and accepted without prejudice by the respondent up to the month of June. 3. We do not have before us the record of the proceedings before the judge, but we were informed that the main ground on which the plaintiff succeeded was that the appellant had sublet the premises, which were domestic premises, without the consent of the landlord. 4. We had first to consider whether the District Judge was correct in refusing to accept jurisdiction, when an application for a further stay was made to him after the expiration of the three months' stay which he granted at the conclusion of the trial. We were referred to section 66 of the District Court Ordinance Cap. 336 which provides that:
Counsel informed us that the judge interpreted this section as meaning that the application must be made in the first instance to a judge of the Court of Appeal. Reference to section 2 of the District Court Ordinance, however, makes it clear that where the word "Court", by itself, appears in the District Court Ordinance, it must be interpreted as a reference to the District Court. Furthermore, the word "judge" is defined in section 2 of the same Ordinance as meaning a judge of the District Court. 5. We therefore have no doubt that the application for a stay of execution should have been made in the first instance to a judge of the District Court and that the judge should have accepted jurisdiction in the matter, and decided whether or not to exercise the discretion conferred in lieu by section 66(2) of the District Court Ordinance, which reads as follows:-
6. Counsel submitted that the effect of section 53(4) of the Landlord and Tenant (Consolidation) Ordinance (Cap. 7) is to limit the duration of a stay of execution granted by a District Judge when acting under Cap. 7 to three months. We do not find it necessary to express a view as to the effect of this section, since in this appeal we are dealing with an application for the extension of a stay of execution pending appeal; and in relation to stays pending an appeal this section cannot have the effect of limiting the discretion of this court to grant a stay of execution for as long as it considers necessary in connection with an appeal. 7. Indeed, to limit this court's power to grant maximum stay to a maximum of three months would be totally unrealistic, in view of the regrettable fact that the great majority of appeals are not heard by this court until much longer than three months after the decision appealed against. 8. Having considered the affidavit which was filed by the appellant, we are of the view that the appellant has a substantial argument to put before this court when the appeal is heard. We are also satisfied that he would suffer substantial hardship if the stay were not continued until the hearing of the appeal. 9. We therefore order that there should be a stay of execution, on the terms that all mesne profits should continue to be paid at the rate of $454.50 on the 5th day of each month until the determination of the appeal. 10. With regard to costs, taking the view that the District Judge was wrong in refusing to accept jurisdiction we think that the proper order is that the costs of the application to the District Judge for an extension of stay should be paid to the respondent in any event, in accordance with the usual rule that the applicant for a stay should pay the costs thereof. With regard to the costs before us, counsel for the appellant has asked that these should be regarded as costs in the appeal and we so order. Huggins, J.A.: 11. I concur. McMullin, J.: 12. I concur. Representation: Delivered in Court on 27th June 1979. L.J. D'Almada Remedios (Stevenson, Low & Co.) for Appellant. Peter Cheung (Liu, Chan & Lam) for Respondent. |