HEBEI PEAK HARVEST BATTERY CO. LTD. v. POLYTEK ENGINEERING CO. LTD.

CACV 224/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 224 OF 1997

(ON APPEAL FROM HCMP NO. 3501 OF 1995)

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J U D G M E N T

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Liu, JA:

1. The parties came to this court, differently constituted, on appeal. Suffice it to say that at the conclusion, no determination was made. The case was remitted to the Court of First Instance for re-hearing. The decision taken by the Court of Appeal arose in this way. Legal contentions aside, in the defendant's Notice of Appeal the court was invited, in the alternative, to remit the defendant's summons to the Court of First Instance to be heard de novo. The Court of Appeal could have proceeded with and disposed of the appeal proper, but because of the matters placed before the court and the documents submitted belatedly for its perusal, the alternative application of the defendant was entertained and acceded to instead.

2. The plaintiff feels aggrieved by the decision so taken by the Court of Appeal and now seeks leave to appeal to the Court of Final Appeal under s. 22 of the Hong Kong Court of Final Appeal Ordinance, Chapter 484. S. 22(1) reads:

"(1) An appeal shall lie to the Court in any civil cause or matter -

(a) as of right, from any final judgment of the Court of Appeal, 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; and

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal, 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." (Emphasis supplied).

3. The plaintiff has, therefore, to show that this court delivered itself of a final judgment or that subject to the discretion of this court to grant leave, questions raised in the appeal involve matters of great general or public importance.

4. The alternative application of the defendant to remit was part of the prayers in its Notice of Appeal. The appeal was prosecuted on the whole of the Notice of Appeal, but in the course of the hearing, two documents were produced by the defendant, which the court received de bene esse. These documents were finally admitted in the judgment handed down by the Court of Appeal. They were not documents obtained in time for the consideration of the judge. On these documents and the matters drawn to the attention of the Court of Appeal, the appellant was able to persuade the court to accede to its alternative application and remit the case to the Court of First Instance with directions. It was clearly driven home in the handed down judgment that the whole exercise was no more than one for identifying the core issues and related principles for a full investigation and that no determinative pronouncement was or was intended to be made. The route through which the Court of Appeal came finally to make its order of remittance was one under the defendant's alternative application in its Notice of Appeal and that did not satisfy the test for finality on the basis of the so-called "application test" adopted in Hong Kong for "a final judgment" within s. 22(1)(a). There is clearly no final judgment to which s. 22(1)(a) applies.

5. The Court of Appeal made no determination. Insofar the Court of Appeal may be said to have fallen in error by deciding not to resolve the parties' controversy or by deciding to remit the case to the Court of First Instance, they (ingeniously put by counsel as final decisions) cannot of themselves give rise to any question of great general or public importance for s. 22(1)(b).

6. The plaintiff, as applicant, has not been able to satisfy me that there is any decision within the meaning of a final judgment in s. 22(1)(a) for the Court of Final Appeal; nor is it able to show for the exercise of this court's discretion under s. 22(1)(b) that any of the submitted final decisions made involves a question of great general or public importance. This court does not even come close to exercising its discretion under paragraph (b). In conclusion, the plaintiff/applicant has not brought itself within either paragraph (a) or paragraph (b) of s. 22(1) of the Hong Kong Court of Final Appeal Ordinance. This application should, in my judgment, be dismissed and I would dismiss it.

Rogers, J.A.:

7. I agree. I have nothing further to add.

Nazareth, V.-P.:

8. I also agree, and would add the following.

9. Given that it was the alternative prayer in the notice of appeal that this Court ultimately addressed and acceded to, it must be that prayer which should be addressed in terms of the application test. It would not finally resolve the matter in controversy. Section 22(1)(a) of the Court of Final Appeal Ordinance therefore does not avail the applicant.

10. Turning to the other limb of s.22(1), i.e. paragraph (b), this is clearly and expressly stated to be in the discretion of this Court. I do not think that this Court should in the particular circumstances give leave for the questions identified to be put up to the Court of Final Appeal. The appropriate stage for those if they meet the criteria in s.22(1) would and must be after the Court of First Instance has reviewed the factual matters identified in our judgment. That conclusion, I think, is reinforced by the high content of as yet unaddressed factual matter that the Court of Final Appeal would have to address at this stage.

11. I, therefore, concur with the view that leave should not be granted by this Court on the present application.