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CACV 147/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 147 OF 2007
(ON APPEAL FROM HCMP 1186 OF 2006)
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NGAI FEW FUNG |
Plaintiff |
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AND |
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CHEUNG KWAI HEUNG |
Defendant |
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Before : Hon Cheung JA and Yam J in Court
Date of Hearing : 30 January 2008
Date of Decision : 31 January 2008
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D E C I S I O N
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Hon Cheung JA (giving decision of the Court) :
Leave to appeal
1. This Court dismissed the defendant’s appeal on 7 December 2007. The defendant now applies for leave to appeal against our decision to the Court of Final Appeal.
2. In order to be entitled to appeal to the Court of Final Appeal the defendant must satisfy the requirements imposed by section 22(1) of the Court of Final Appeal Ordinance (Cap. 484). Either the judgment under appeal is a final judgment involving a claim of $1,000,000.00 or the appeal involves issues of general public importance or that there should be some other reason for the Court of Final Appeal to consider the matter.
3. The defendant applied to strike out the plaintiff’s statement of claim and failed. The judgment was not a final judgment because by reason of the judgment the merits of the plaintiff’s claim are still required to be resolved at the final determination of the claim. It failed the ‘applications test’ in that the determination of the application leading to the judgment would not finally dispose of the action or the relevant issue, whichever party succeeded on the application, see : Sam Woo Bore Pile Foundation Limited v. China Overseas Foundation Engineering Limited (unreported FAMV 21/2007).
4. Further we do not agree that the case involves matters of great general or public importance, or otherwise, ought to be submitted to the Court of Final Court for decision.
5. Accordingly the application is dismissed with costs to the plaintiff.
Variation of costs order
6. The defendant also asks for a variation of the provisional costs order that she is to pay the plaintiff the costs of the appeal. She asks for no order as to costs. We will dismiss the application because we are of the view that costs should follow the event.
(Peter Cheung)
Justice of Appeal |
(D. Yam)
Judge of the Court of First Instance |
Mr. Richard Leung, instructed by Messrs Tsang, Chan & Woo, for the Plaintiff
Defendant : in person, present
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