CHUM HON CHI v. DIRECTOR OF LANDS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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JUDGMENT

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Nazareth V-P:

1. The applicants in both these appeals appealed against the assessments made by the Lands Tribunal of the amount of compensation payable under s. 10(2)(d) of the Crown Lands Resumption Ordinance (Cap. 124). Their appeals were dismissed on 22 October 1997 by this Court differently constituted.

2. The assessments related to resumption of land within the same general area. The two appeals were heard together, the background being the same. The first ground in each was also the same and expressed in the same words. They were therefore heard together and a single judgment was given in respect of both.

3. The appellants now seek leave to appeal against the dismissal of the appeals to the Court of Final Appeal. Following the earlier procedure adopted we have heard their applications together. As they did before, they appear in person. They have put in notices of application with grounds which appear to have been prepared with some legal assistance, besides being couched in precisely the same terms as before. Indeed it can be seen that the grounds of appeal to this Court are reproduced.

4. The first ground all three applicants relied upon is the same. It relates to the discount rate of 9% applied by the Tribunal.

Civil Appeal No. 122 of 1996

5. It is convenient to begin with the provision of law that regulates appeals to the Court of Final Appeal as of right. The first limb of s. 22(1) of the Hong Kong Court of Final Appeal Ordinance provides:

Mr Chum Hon-chi, the applicant in Civil Appeal No. 122 of 1996, says his claim is for over $100,000,000 and therefore he automatically qualifies for leave.

6. However, as Mr Raymond Tam for the respondent points out, that is not how the law approaches this matter. Where a claim is not for a liquidated sum but as here a claim for damages to be assessed, this Court adopts the principle enunciated in Zuliani v Veira [1994] 1 WLR 1149, i.e. in cases where it is a matter of the utmost probability or even of virtual certainty that the damages ultimately awarded will be in excess of [$1m], the Court of Appeal may very well think it is right as a general rule to grant leave in the exercise of its discretion. Equally, however, there may be cases where the likely amount of damages is at or above that threshold but which so lack merit that the Court of Appeal in its discretion would refuse leave.

7. Here it is plain as Mr Tam has shown, that the difference between the 9% discount applied, and the 4 to 5% discount contended for by the applicant below, will not produce anything remotely like an amount of or above $1m. Plainly, the applicant Chum Hon-chi is not entitled to appeal as of right under s. 22(1)(a).

8. I turn then to the second limb of s. 22(1), i.e. paragraph (b) which provides for leave to appeal in the discretion of this Court:

"[an appeal may lie] at the discretion of the Court of Appeal ... from any other judgment... if in the opinion of the Court of 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 for decision."

9. The applicant Chum Hon-chi seeks to rely upon two additional grounds under this limb. These were grounds for which he did not obtain leave before the Court of Appeal and they were not grounds before the Court of Appeal. Even if they had been, it is difficult to see how the Court's discretion could properly be exercised to grant leave within the permitted ambit; and with reference to s. 22(1)(a) how they would, in term of Zuliani, take the claim to $1m or beyond.

10. As to the first ground, the applicant suggests that it is a matter of great general and public importance because more than one million people, he says, will be affected in the way he has been affected particularly when land comes to be resumed for the north-west railway. I do not accept that. Like the additional grounds, it is peculiarly related to its own facts and none of them, in my view, can be said to raise a question of great general or public importance, nor otherwise warrant the exercise of the discretion under s.22(1)(b) in favour of the appellant.

11. For those reasons, in my view, Chum Hon-chi's application fails and should be dismissed.

Civil Appeal No. 124 of 1996

12. The first ground of the two applicants in Civil Appeal No. 122 of 1996 fails upon the reasons given in respect of the 1st applicant's first ground. They have a second ground. It relates to the rent on what was called "Shop C" and the cost of installation of piping, and is essentially a question of fact. For that reason, it was not a proper ground of appeal in the first place, since appeals from the Lands Tribunal be only upon a point of law, s. 11(2) Lands Tribunal Ordinance, Cap. 17. Nevertheless it was carefully addressed and rejected, as can be seen from the judgment of the Court of Appeal. It cannot now be a ground of appeal as of right under s. 22(1)(a), since the relevant claim is only of the amount of $300,000. Even if there is added to it the 4% difference in the discount rate under the first ground, the result falls far short of the $1m threshold.

13. As to discretionary leave under s. 22(1)(b), although the applicants do not appear to seek leave under this limb, I say at once that I can see no good reason for exercising in their favour the discretion to grant them leave on this ground or the first ground.

14. I would accordingly decline to exercise the discretion under s. 22(1)(b) to grant leave.

15. I would dismiss the applications of all three applicants.

16. I add generally that the applicants being in person, I have not taken up the point that they have not identified their points of law, an indulgence that it should not be thought will be generally accorded.

Liu JA:

17. I wholly agree.

18. Both applications are alternatively grounded on issues which, so it has been submitted, ought to go to the Court of Final Appeal. Under s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, matters fit for the ultimate determination of the Court of Final Appeal need involve points of law not only of general or public importance but they have also to be points of law of great importance. There is no such point of law in the proposed grounds to enable us to grant leave to the applicants.

19. I, too, would refuse leave.

Mayo JA:

20. I also entirely agree that these applications must be dismissed. There is nothing that I can usefully add.

Nazareth V-P:

21. The applications are accordingly dismissed.