EMPLOYEES COMPENSATION ASSISTANCE FUND BOARD v. FONG CHAK KWAN

FAMV No. 43 of 2022

[2022] HKCFA 4

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2022 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM

CACV NO. 358 OF 2020)

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.  The applicant (“the Board”) seeks leave to appeal against the judgment of the Court of Appeal[1] which upheld the decision of Marlene Ng J[2] that jurisdiction was properly founded by the respondent as passing through the jurisdictional “gateway” under O 11 r 1(1)(f) (referred to below as “Gateway F”), involving a claim based on a tort committed outside Hong Kong where the damage was sustained within the jurisdiction.

2.  The Board applies for leave putting forward two questions said to be of the necessary great general or public importance. Additionally, prior to the hearing, a separate question was raised by the Appeal Committee for consideration.

3.  The two questions proposed by the Board are as follows:

(a)  “On a proper interpretation of the phrase ‘the damage was sustained ... within the jurisdiction’ in Gateway F, whether ‘the damage’ is limited to damage directly caused by the alleged tortious act, or whether it extends to indirect or consequential damage (e.g. the pecuniary expenditure or other loss resulting from the direct damage) sustained within the jurisdiction?” (“Question l”)

(b)  “Whether it is correct for the CA to approach the obiter dicta of the majority view of the UKSC as if it were a decision of a court of coordinate jurisdiction, such that the same should be followed ‘unless [the CA is] satisfied that it is clearly wrong’?” (“Question 2”)

4.  We are satisfied that Question 1 is of the requisite importance and grant leave to appeal in respect thereof.

5.  We dismiss the application in relation to the abovementioned Question 2.  It arises from an unfortunately phrased paragraph in the Court of Appeal’s judgment[3] which has since been clarified and put right in the Court of Appeal’s decision refusing leave to appeal.[4]  It was obviously not suggesting that a decision of the UK Supreme Court, whether or not obiter, could be binding in Hong Kong as a matter of stare decisis but merely emphasising the persuasive weight to be accorded to a fully considered judgment of that UK Court.

6.  The Board’s reference to leave on the “or otherwise” ground adds nothing to its application.

7.  Prior to the hearing, the Appeal Committee drew attention to a question that had not been raised or considered below.  The parties were invited to address us on whether section 33(d) of the Employees Compensation Assistance Ordinance (Cap 365)[5] (the Ordinance governing the obligations, powers and functions of the Board) was of relevance to the proposed appeal, and if so, and if leave to appeal were to be granted in respect of any of the questions set out in Form B, whether there ought to be added thereto a further question as to the scope, effect and consequences of section 33(d) to be addressed on the proposed appeal.

8.  Having heard the parties’ submissions, we are satisfied that leave to appeal should also be granted in respect of the following question to be referred to as the new Question 2:

“Is section 33(d) of the Employees Compensation Assistance Ordinance (Cap 365) applicable and if so, what are its consequences for the appeal?” (“Question 2”)

9.  The appeal will be listed for hearing on 19 May 2022.