TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No.128, Yuen Long, New Territories, Hong Kong AND ANOTHER

TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No.128, Yuen Long, New Territories, Hong Kong AND ANOTHER

Because the Court of Appeal had refused leave to appeal and made an Order 59 rule 2A(8) direction, and because section 63B of the District Court Ordinance and the cited Practice Note preclude appeal from such a refusal, the 2nd defendant had no available route to the Court of Final Appeal and his application for a stay of execution was misconceived and must be dismissed.

Citation
TO HIN CHEUNG AND OTHERS v. All occupier(s) of a portion of Lot No 240 in Demarcation District No.128, Yuen Long, New Territories, Hong Kong AND ANOTHER
Parties
Plaintiff: TO HIN CHEUNG; Plaintiff: TO CHI CHEUNG; Plaintiff: TO SHIU CHEUNG; 1st Defendant: All occupier(s) of a portion of Lot No 240 in Demarcation District No.128, Yuen Long, New Territories, Hong Kong; 2nd Defendant: CHAN WAI KEUNG
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
18 November 2013
Case Number
DCMP1288/2011
Procedural Posture
Miscellaneous Proceedings / Application for Stay of Execution Pending Application to the Court of Final Appeal for Leave to Appeal
Outcome
Application dismissed
Legal Topics
Stay of Execution, Leave to Appeal, Procedural Bars, Finality of Permission to Appeal
Source Language
EN
Civil Procedure Appeal District Court Practice Stay of Execution Leave to Appeal Procedural Bars Finality of Permission to Appeal

Case Brief

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Parties

TO HIN CHEUNG

Plaintiff

TO CHI CHEUNG

Plaintiff

TO SHIU CHEUNG

Plaintiff

All occupier(s) of a portion of Lot No 240 in Demarcation District No.128, Yuen Long, New Territories, Hong Kong

1st Defendant

CHAN WAI KEUNG

2nd Defendant

Procedural Posture

Miscellaneous Proceedings / Application for Stay of Execution Pending Application to the Court of Final Appeal for Leave to Appeal

Legal Issues

  1. 1 Whether a stay of execution should be granted pending the 2nd defendant's application to the Court of Final Appeal for leave to appeal
  2. 2 Whether the Court of Appeal's prior refusal of leave and orders under Order 59 rule 2A(8) preclude further recourse to a higher court
  3. 3 Whether section 63B of the District Court Ordinance and the Practice Note preclude the 2nd defendant’s proposed route to the Court of Final Appeal

Ratio Decidendi

Because the Court of Appeal had refused leave to appeal and made an Order 59 rule 2A(8) direction, and because section 63B of the District Court Ordinance and the cited Practice Note preclude appeal from such a refusal, the 2nd defendant had no available route to the Court of Final Appeal and his application for a stay of execution was misconceived and must be dismissed.

Court Disposition

Application dismissed

Orders

  • The application for a stay of execution is dismissed.