SWIRE PROPERTIES LTD. AND OTHERS v. THE SECRETARY FOR JUSTICE ON BEHALF OF THE GOVERNMENT OF THE HKSAR

CACV 1058/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 1058 OF 2001

(ON APPEAL FROM HCCT 11/2001)

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J U D G M E N T

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Hon Rogers VP:

1. In this case, the court is going to give leave. It may well be said that it is very clear from this court's judgment that this court's view of the strength of the appellants' case is not very optimistic, to put it at its mildest. It may well be that on strict principles, this case would not come within the realms of those that should go to the Court of Final Appeal, but there is an overriding discretion in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, which gives this court and the Court of Final Appeal power to allow an appeal to be brought in undefined circumstances.

2. Without laying down any particular criteria, it does seem to me that the circumstances of this case justify this case being allowed to go to the Court of Final Appeal, for this reason. The appellants started, in effect, in the early 1970s with a considerable tract of land which was very valuable and could be developed. They have now ended up in a situation where they may have to pay literally billions of Hong Kong dollars for having developed it.

3. That is a situation which has been analysed by the arbitrator and analysed by the courts, and indeed Mr Harris is correct when he says that the parties did agree to arbitration which should be final. Nevertheless, in the very exceptional circumstances of this case, this court considers that leave should be given so that the matter can be finally ventilated.

Hon Le Pichon JA:

I agree.

Hon Yuen JA:

I agree.