KAN MIU WAH, PAULINE v. AEROFLOT RUSSIAN INTERNATONAL AIRLINES

cacv 142/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 142 of 2006

(on appeal from HCPI NO. 313 of 1996 )

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REASONS FOR DECISION

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Hon Le Pichon JA:

1.  This was an application by the plaintiff for leave to appeal to the Court of Final Appeal.  At the conclusion of the appeal hearing, leave was refused with costs with written reasons to be handed down later which we now do.

2.  The background facts sufficiently appear in the reasons for judgment of this court handed down on 6 September 2006 after dismissing the plaintiff’s appeal from the order of Suffiad J dated 28 March 2006 and I do not propose to rehearse them here.  Suffice it to say that the order of Suffiad J unsuccessfully appealed from (1) gave the plaintiff leave to file an affidavit to raise the issue that she was forced into the settlement agreement so that she was no longer bound by it and (2) gave directions for the determination of the preliminary issue set out in (1) and, if necessary, proceed thereafter with the Order 80 application for the approval of the settlement.  It will be seen that the unsuccessful appeal to this court concerned a matter of case management and nothing more.

3.  The plaintiff submitted that she was entitled as of right to appeal pursuant to section 22(1)(a) of the Court of Final Appeal Ordinance.  Her basis for so saying appeared to be the fact that the sum under the settlement agreement is $7.25 million.  It was asserted that the plaintiff’s share, once it had been apportioned, would be more than $1 million.  The first matter to note is that although, as recorded in paragraph 16 of the judgment of this court, at the appeal hearing the plaintiff accepted the terms of the settlement thereby disposing of the preliminary issue, given the present leave application and (as will become apparent) the allegations made against this court, there is now (to say the least) considerable doubt and uncertainty as to the plaintiff’s current stance.  Be that as it may, as the underlying action is one for unliquidated damages rather than an action founded on the settlement agreement, the plaintiff is not entitled as of right to appeal to the Court of Final Appeal.  Her reliance on section 22(1)(a) is wholly misconceived.

4.  At the end of her long address read out to this court, the plaintiff appeared to be relying on section 22(1)(b) in the alternative.  As this court had difficulty in grasping the issue or question said to be of “great general or public importance”, the plaintiff was asked to identify the same.  The plaintiff then proceeded to identify no less than four such issues which I noted verbatim and reproduce below with the advantage of checking against the transcript:

“	1.	This Court of Appeal did not properly hear the plaintiff’s appeal.
	2.	In the court below, and the judges in this Court of Appeal had unreasonably asserted the unnecessary allegation to the plaintiff in advance of the plaintiff taking out a summons to set aside the approved settlement and in advance of the defendant taking out a summons to apply to the court that the plaintiff is in breach of contract and renege out of the settlement agreement.
	3.	The master and the judge in the court below took advantages of their job position to abuse the court process of case management in order to satisfy the defendant’s request to take a full control of the court’s approval procedure.
	4.	The master and the judge in the court below and the judges of this Court of Appeal have failed to conduct the plaintiff’s hearing in an appropriate way to discharge their judicial function and falling into a serious mistake in adversarial common law system in Hong Kong.”

5.  In my view, none of the issues identified can remotely be said to arise out of the subject matter of the intended appeal.  Rather, they appear to be complaints and allegations made against the master, the judge below and this court as to the manner in which the various hearings had been conducted.  It may be that the plaintiff harbours such grievances but that fact cannot elevate and transform those grievances into issues of “great general or public importance” where none exists.

Hon Yeung JA:

6.  I agree.