WANG RUIYUN v. GEM GLOBAL YIELD FUND LTD

CACV 147/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 147 OF 2010

(ON APPEAL FROM HCCL 16 OF 2006)

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BETWEEN

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REASONS FOR DECISION

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Hon Cheung JA (giving reasons for decision of the Court) :

1.  The defendant applied for leave to appeal to the Court of Final Appeal against our judgment of 20 June 2011. We refused the application with costs to the plaintiff. We now give our reasons.

Section 22(1)(a)

2.  The defendant first contended that it is entitled to appeal as of right under section 22(1)(a) of the Court of Final Appeal Ordinance (Cap. 484). This is misconceived.  Under the first limb of section 22(1)(a), the sum which amounts to or is of the value of $1 million must be a liquidated sum (Cheng Lai Kwan v. Nan Fung Textiles Ltd (1997-98) 1 HKCFAR 207).  In the present case the amount sought by the plaintiff was not a liquidated sum.  It was an unliquidated sum which required assessment by the Court.  This remains the case even if the amount had been quantified : Bill Chao Keh Lung v. Don Xia (2004) 7 HKCFAR 260.

3.  The defendant sought to rely what Ribeiro P.J. said in  China Field Ltd v. Appeal Tribunal (Buildings) (No. 1) (2009) 12 HKCFAR 68 :

‘ 24. Consistently with the strict approach adopted in relation to the first limb of s.22(1)(a), it is only proper to ascribe a value which qualifies for leave as of right to the candidate claim or question if (i) on the evidence, such value is clearly quantifiable as a value of $1 million or more; and (ii) the court is satisfied that the Court’s order made upon disposing of the proposed appeal would take effect by immediately conferring or imposing on the relevant parties a financial benefit or detriment in the quantified amount. It is not enough that one is able plausibly to say that such a financial impact is a likely eventual result of the appeal.’

4.  This does not assist the defendant because Ribeiro PJ was addressing the second limb of section 22(1)(a) which is not engaged in the present case.  The present case is a breach of contract claim and is not a claim which involves some claim or question to or respecting property or some civil right.

Section 22(1)(b)

5.  The only other basis for the defendant to obtain leave is under section 22(1)(b).

6.  It has been said that section 22(1)(b) provides a discretion to grant leave which the Court of Final Appeal may exercise if it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately awarded will be in excess of the threshold amount.  But as pointed out in Bill Chao Keh Lung, this is, however, subject always to the grant of leave being justified by the apparent merits of the appeal.

7.  The defendant contended that this Court erred on the question of available market and it is unsatisfactory to have conflicting decisions in Hong Kong and overseas jurisdictions on this point.  In our view the great general public importance point is not engaged because we did not propound any conflicting principle which may require the resolution by the Court of Final Appeal.  The real dispute is on the application of the established principles to the facts of the case.

8.  Section 22(1)(b) is also not engaged as to the meaning of Order 18 Rule 12(1)(c).

‘Or otherwise’ ground

9.  We do not see that there are exceptional circumstances or injustice in this case which would engage the ‘or otherwise’ ground.

Conclusion

10.  Accordingly the application is dismissed with costs to the plaintiff.