ORIENTAL PRESS GROUP LTD v. APPLE DAILY LTD

IN THE COURT OF APPEAL

1997, No. 104
(Civil)

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J U D G M E N T

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Godfrey, J.A. (giving the judgment of the court) :

1. By section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, it is provided that an appeal shall lie to the Court of Final Appeal, in any civil cause or matter, at the discretion of this court, or the Court of Final Appeal, against a judgment of this court, if in the opinion of this court, or of the Court of Final Appeal, 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.

2. In this case, in which this court gave judgment in favour of the respondent on 19 September 1997, the appellants now invite this court to certify as fit for hearing by the Court of Final Appeal the following question : How should infringement of copyright damages be assessed where one paper copies another's exclusive photograph knowing that that other paper would not grant it a licence to do so?

3. A question framed in this broad way is not, in the opinion of this court, one which is fit to be certified for hearing by the Court of Final Appeal, which is not an academic forum but a practical tribunal set up to consider questions of great general or public importance. The appellants' real grievance in the present case is that the damages awarded by the judge were in the words of counsel for the appellants, "inordinately low". That is not a matter which, in the opinion of this court, gives to a question of great general or public importance or which is otherwise suitable for consideration by the Court of Final Appeal. It will of course be open to the appellants to renew their application to that court, which, if it takes a different view of the matter from this court, will no doubt then decide to entertain the appellants' appeal.

4. We should add that counsel for the appellants suggested that a further question arises as to what are called "conversion" damages; but this is not a live issue for future cases, since the law allowing such damages has now been changed. There is no evidence before us of any substantial number of cases pending before the change in which the point would arise for decision. This subsidiary point also is therefore not fit for certification. So we must do what is right in our opinion and refuse this application; though to do so (to borrow the famous words of Lord Mansfield in Rex v. Wilkes 4 Burr. 2527, at p.2562) "should draw on us the whole artillery of libels".

5. The application will therefore be dismissed, with costs.