DR PAUL KI PING KI AND ANOTHER v. NEXT MAGAZINE PUBLISHING LTD. AND OTHERS

CACV 175/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 175 OF 2000

(ON APPEAL FROM HCA No 11533 of 1996)

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J U D G M E N T

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Hon Leong JA (giving the judgment of the Court):

1. On 30 May 1999, Registrar Chu of the High Court made an order to the effect that the 1st defendant Next Magazine Publishing Ltd was entitled to set off its entitlement to costs in this action from Dr Ki against its liability to pay $200,100 damages to Dr Ki in an action HCA 11533/1996. Dr Ki was the 1st plaintiff in that action. Registrar Chu's order was not sealed until 5 August 1999.

2. Ten months after the Registrar's order, on 15 March 2000, Dr Ki applied for leave to appeal out of time against the order of Registrar Chu. The time limit for appeal should be 5 days after the Registrar's order. The application for leave to appeal was dismissed by Madam Yuen J who held that there was substantial delay in Dr Ki's application, even if counting from 5 August 1999.

3. Dr Ki's explanation for the delay was his confusion over the order of the Registrar and the position of the trustees in bankruptcy as explained by the Official Receiver's letter of 20 January 1999 and he was also distracted by other proceedings in which he was involved at the time. This explanation was rejected by Madam Yuen J. The Judge found that although the delay had not caused Next Magazine Publishing Ltd any prejudice, there was no merit in Dr Ki's appeal. She held that s. 35 of the Bankruptcy Ordinance, Cap. 6 enables Next Magazine Publishing Ltd to set off the tax costs against the damages awarded to Dr Ki.

4. Dr Ki's appeal against Madam Yuen J's decision was dismissed by this court, differently constituted, on 13 July 2000. This court held that the Judge had correctly come to her conclusion and was fully justified in refusing to exercise her discretion to grant leave to Dr Ki.

5. Dr Ki now applies for leave to appeal to the Court of Final Appeal against this court's decision.

6. The decision against which Dr Ki is now seeking leave to appeal to the Court of Final Appeal is not one within s. 22(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. That section provides that an appeal only lies to the Court of Final Appeal if the amount involved is $1 million or more or 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 of Final Appeal for decision.

7. Dr Ki submits this morning that meaning of "mutual benefit" in s. 35 of the Bankruptcy Ordinance is a question of great and general public importance. However, the law on this is clearly established in DH Curtis (Builders) Ltd [1978] 2 WLR 28 where s. 31 of the Bankruptcy Act in England was considered. S. 31 of the English Act is the equivalent of s. 35 of the Bankruptcy Ordinance. DH Curtis held that set off is not limited to a debt arising out of contract. We do not see any question on this aspect of the law that needs to be reconsidered. We are of the opinion that Dr Ki has not been able to demonstrate to this court what question of great and general public importance or what reason otherwise, if any, is involved in his appeal that the matter should be dealt with by the Court of Final Appeal. The application is accordingly dismissed with costs to the respondents.

Remarks:
An application for leave to appeal by the 1st and 2nd Plaintiff to the Court of Final Appeal Application for leave to appeal dismissed. Please refer to the appeal judgment FAMV000032/2000.