Applications for Stay of Execution Must be Made to the Correct Court; Practitioners Should Exercise Due Care in Considering Existence of “Special Circumstances”

Ben Chan and Winnie Yuen of our litigation team, instructing Counsel Mr. Taylor L.K. Li, successfully opposed the Plaintiff’s application for stay of execution in Chung Pui Tong v Qian Zhen (錢珍) [2021] 5 HKLRD 466.

The Plaintiff applied to the Court of Appeal for stay of execution pending appeal of a judgment against him ordering, inter alia, that he deliver vacant possession of a property he was residing in within a specified time. Although the Plaintiff issued appeal proceedings about a month following judgment, it was not until some 8 months after the specified time had elapsed, and only after the court bailiff warned of imminent eviction, that the Plaintiff made his application.

The key issue before the Court was whether to entertain the stay application in light of O 59 r 14(4) RHC, which specifies that any such application must in the first instance be made to the court below rather than to the Court of Appeal, unless there are special circumstances which make it impossible or impracticable to do so. The Court accepted that “the court below” means, in this context, the judge who made the decision or order in respect of which a stay of execution is being sought, rather than the level of the court in the court hierarchy. 

The Court held, refusing to entertain the Plaintiff’s application, that it was not impossible or impracticable for the Plaintiff to apply to the trial judge despite being informed that her Ladyship was unavailable “for the whole week” to hear the application. First, disposal on paper was a suitable alternative to an oral hearing. Second, even if an oral hearing was necessary, only a short hearing would be required and it is unlikely that such a hearing within a reasonable time frame could not be found in a judge’s diary. The Plaintiff’s solicitors had not sought a paper disposal and there was no evidence they had made any further inquiry regarding the trial judge’s availability.

Separately, the Court emphasised that an appeal does not operate as a stay of execution (O 59 r 13(1) RHC) and that stay applications should be made within a reasonable time post-judgment. Unjustified inordinate delay was a factor to be considered by the court in deciding stay applications; inability to afford lawyers could not justify such delay where the applicant was well educated and could make the application in person. Further, urgent applications for interim stay would likely be refused by the court where the urgency was self-inflicted.

Ben Chan (Consultant)
Winnie Yuen (Solicitor)
H. Y. Leung & Co., LLP
Hong Kong