KIN YUEN v. THE JOINT & SEVERAL LIQUIDATORS OF KONG WAH HOLDINGS LTD (In Compulsory Liquidation)

FACV No. 3 of 2008

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 3 OF 2008 (CIVIL)

(ON APPEAL FROM CACV NO. 253 OF 2007)

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D E C I S I O N

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Chief Justice Li:

1.  On 14 May 2008 the appellant applied to withdraw these two appeals.  The application was made pursuant to r. 17(1) of the Hong Kong Court of Final Appeal Rules.  Rule 17(2) provides that the Court may determine an application to withdraw an appeal without a hearing.

2.  By a decision dated 22 May 2008, Mr Justice Bokhary PJ, sitting as a single permanent judge, granted leave to the appellant to withdraw these appeals, with no order as to costs (“the Decision”).  The Decision was sent to the parties and was published on the Judiciary’s Website.  The formal order was sealed on 29 May 2008.  He was exercising the power which s. 46(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 confers on a single permanent judge to make any incidental order on an appeal that does not involve the decision of the appeal.  Under s. 46(3), an order made under s. 46(2) may be discharged or varied by the Appeal Committee. 

3.  At the time of the Decision, the appellant had already filed his written case setting out his arguments.  But the liquidators had not done so, the deadline for lodging their written case having been extended by a consent order.

4.  The respondents (“the liquidators”) are concerned that the Decision, which contains 31 paragraphs, may be interpreted as commenting on the merits of the appeals.  Further, since the liquidators had not filed their written case, their arguments were not referred to in the Decision. 

5.  The liquidators have applied to the Appeal Committee: (1) to recall the Decision; (2) alternatively: (a) there be an addendum to the Decision recording that it was given without having the advantage of considering the liquidators’ written case and that it did not intend to decide any issues arising in the appeals and should not be relied upon as a statement or direction of practice or principle, or as a precedent; (b) it shall not be published or circulated; and (c) it should be restricted to the parties to the appeals.  At the hearing, Mr Rimsky Yuen SC for the liquidators did not pursue (1).

6.  In deciding an application to withdraw an appeal, the Court should essentially be concerned with matters relating to withdrawal.  It would generally not be appropriate for the Court to comment on the merits of the appeal.  At that stage, even assuming that the written cases had been filed, the Court would not have had the benefit of full argument.  Where, as in the present case, the respondents have not filed their written case, the undesirability of commenting on the merits is even stronger.  A single permanent judge exercising his powers under s. 46(2) in deciding on an application to withdraw is of course in no different position from the Court.

7.  The concern of the liquidators is understandable.  But in our view, the Decision did no more than this:  It noted that the questions raised are of public importance, set out the background to the appeals and the reasoning of the courts below, and referred to the arguments which the appellant would have advanced had the appeals proceeded to a full hearing.  It should not be read or understood as expressing any view on the merits of the appeals or as providing any guidance on any matter of principle or practice.

8.  In short, as was submitted by Mr Godfrey Lam SC for the appellant, the thrust of the Decision was that the points of law raised by the appeals are very worthy of the Court’s consideration but that it must await another occasion (See para 31 of the Decision).  Indeed, the Appeal Committee (Chief Justice, Bokhary and Chan PJJ) had granted leave to appeal on the basis that there were debatable questions of great general and public importance which ought to be considered by the Court.

9.  In the present case, there is no basis in principle for making any of the orders and directions sought by the liquidators.

10.  However, this Decision makes it clear that the Decision was given when the Judge did not have the benefit of the liquidators’ written case and that it should not be read or understood as commenting on the merits or as providing any guidance on any matter of principle or practice.  This adequately deals with the liquidators’ concern.

11.  There should be no order as to costs on the present application.