HAHN-SHIN MICHELINE, SUCKHI v. THE GOVERNMENT OF HKSAR BAILIFF [OPERATION SECTION]

CACV 62/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 62 OF 2007

(ON APPEAL FROM HCA 1499/2006)

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J U D G M E N T

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Hon Tang V-P:

1.  I agree with the judgment of A Cheung J and have nothing to add.

Hon Yuen JA:

2.  I agree with the judgment of A Cheung J.

Hon A Cheung J:

3.  By a judgment handed down on 17 December 2007, this Court dismissed the plaintiff’s appeal from a judgment handed down by Lam J on 5 February 2007.  By that judgment, the Judge refused to grant the plaintiff leave to appeal out of time from the decision of the Registrar of 13 November 2006 to strike out her claim, dismissed the plaintiff’s appeal from the decision of the Registrar of 29 December 2006 on costs and ordered the plaintiff to pay the costs of the defendant accordingly.  In dismissing her appeal, this Court also ordered the plaintiff to pay the costs of the appeal to the defendant. 

4.  The plaintiff now seeks leave to appeal to the Court of Final Appeal.

5.  The background to and issues raised by the appeal and this Court’s reasons for dismissing the appeal have all been set out in the judgment handed down by the Court, and they need not be repeated here.

6.  The grant of leave to appeal is governed by section 22 of the Hong Kong Court of Final Appeal Ordinance (Cap 484):

“(1)  An appeal shall lie to the Court-

(a)  as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more.

(b)  at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision; and

……”

7.  Although the plaintiff claims for an award of damages that runs into millions of dollars, this does not bring her case within section 22(1)(a) of the Ordinance.  The plaintiff’s claim is one for an award of unliquidated damages, and that sub-section, which provides for appealing to the Court of Final Appeal as of right, does not apply to such a claim: Cheng Lai Kwan v Nam Fung Textiles Limited (1997-98) 1 HKCFAR 204.

8.  The intended grounds of appeal raised by the plaintiff all go towards the factual merits of her claim.  They do not deal with the legal issues decided by the Court in dismissing her appeal.  The intended grounds of appeal do not raise any question of “great general or public importance”, nor do they raise any questions which otherwise ought to be submitted to the Court of Final Appeal for decision.

9.  Nor do I consider the legal questions decided by this Court to be questions of great general or public importance.  They relate to the Government’s absolute immunity from suit under section 4(5) of the Crown Proceedings Ordinance (Cap 300) regarding acts or omissions of any person while discharging responsibilities in connection with the execution of judicial process, and the absence of liability of a superior government servant, whether vicariously or as a principal, for the tort of a subordinate.  On these matters, the law is clear.  They are not questions of great general or public importance; nor are they otherwise questions that ought to be submitted to the Court of Final Appeal for decision.

10.  In those circumstances, no case for granting leave under section 22(1)(b) has been made out.

11.  I would therefore dismiss the application for leave with an order nisi that there be no order as to costs (bearing in mind the plaintiff’s lack of means and physical condition).