JOHN BAPTIST WU v. TSOI KAY AND ANOTHER

FAMV No. 3 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 3 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 3 OF 1998)

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D E T E R M I N A T I O N

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Mr Justice Litton PJ:

1. This is the determination of the Appeal Committee.

2. The application for leave to appeal to the Court of Final Appeal concerns an action started by writ on 20 August 1987. The applicant was the plaintiff. He was, for many years, residing in Belgium. In April 1982 he made an oral agreement with the respondents trading under the name of Good Years whereby he, the applicant, acted as a commission agent for the sale of artificial flowers by Good Years to the applicant's customers in Europe. The applicant was to receive a commission computed as a percentage of the sales price. For this purpose Good Years kept what was called a Commission Book. The applicant kept no records whatsoever.

3. The relationship between the parties continued for some years, until 21 August 1986 when Good Years, by a written notice of that date, gave notice of termination effective as at 30 September 1986. 11 months later, the applicant commenced proceedings against the respondents.

4. The case had a tortuous history. It was finally heard by Mr Justice Stone in October 1997. The applicant was represented by counsel. The respondents were unrepresented.

5. The applicant's primary claim to relief was for an account of commission due on sales made by Good Years to customers in Europe. He faced in that regard one insurmountable difficulty: He had, on a visit to Hong Kong on 3 August 1986, "signed off" in the Commission Book the commissions payable by Good Year. In effect, therefore, the applicant's claim for commission was confined to sales after the arrangement was terminated in September 1986. Briefly, the applicant's case was that, arising from the oral agreement made in April 1982, his European clients were "his property" and accordingly any dealings at any time with any client attracted commission payment. The judge rejected this claim. At trial, there was an attempt to dress up the point by asserting that the details concerning the applicant's clients constituted "confidential information" and the use of such information by the respondents gave the applicant a separate right to relief. This too was rejected by the judge. An alternative case was put to the judge to this effect: The period of notice for termination given by the respondents, expiring on 30 September 1986, was too short; the applicant was entitled to at least one year's notice, and hence to commission to all sales to "his" customers for one year. This too was rejected by the judge.

6. At the trial, the respondents had a counterclaim against the applicant which succeeded to this extent: The applicant had borrowed from the respondents a sum of $200,000 in advance of commission. Ultimately, as computed by the judge, there was a sum of $36,160 outstanding. Judgment for this sum was awarded on the counterclaim.

7. The applicant appealed against Stone J's judgment to the Court of Appeal. Apart from an attempt to seek a re-trial of factual issues before the Court of Appeal, which the Court of Appeal rightly rejected, the appeal focussed on two matters: (i) the question whether the 5 weeks' notice to terminate the relationship was valid; and (ii) Stone J's conduct of the trial itself.

8. As to point (i), the problem facing the applicant was that, on the facts found by the judge, it was the applicant himself who had sought a termination of the relationship, by turning to a firm called Wah Mei to supply artificial flowers to his European customers in place of Good Years. As the judge found, it was the applicant's own evidence that all his major customers had asked him to switch to Wah Mei and he did so within two weeks in May 1986. As to point (ii) this focussed on the interventions made by the judge in the course of the trial. There were numerous occasions when this occurred. The judge also made intemperate remarks; on occasions he showed marked hostility to points made by the applicant's counsel. The Court of Appeal was concerned over the judge's behaviour. Liu JA viewed the interventions with disapproval. Mortimer VP observed that "the judge would himself agree in retrospect that in total he intervened too much and his language was not always as dignified as he would have wished". Nazareth VP also observed that the judge would have been better advised not to have intervened to the exceptional extent that he did here. We agree with these observations. But the Court of Appeal, having examined the transcript, firmly concluded that the judge remained impartial and the trial was a fair one. The appellant's appeal was, by the Court of Appeal's judgment given on 23 July 1998, dismissed.

9. The applicant then sought leave from the Court of Appeal to appeal to the Court of Final Appeal. He contended that he had an appeal as of right under s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484. There was, however, this difficulty: His claim to relief was for no more than an account of dealings between the respondents and a number of European customers and for injunctive relief: His entitlement to a money judgment, based upon a percentage of the sales, was far down the line. There was, on his appeal, no "matter in dispute" amounting to, or of the value of, $1m. Nor did his appeal involve any claim to property or some civil right amounting to $1m. The Court of Appeal therefore concluded, following the determination of the Appeal Committee in Cheng Lai Kwan - v - Nam Fung Textiles Ltd [1998] 4 HKC 1, that the applicant's appeal against the dismissal of his claim did not come within s.22(1)(a). Plainly, the appeal against the award on the counterclaim did not come within that section. As to whether a discretion might be exercised in the applicant's favour under the "or otherwise" limb in s.22(1)(b), the Court of Appeal held that he had come nowhere near satisfying the court that he would, as a matter of virtual certainty, ultimately obtain monetary judgment amounting to $1m or more. And as to whether there was any question involved in the appeal of great general or public importance the Court of Appeal concluded there was none. The application for leave to appeal was, on 22 January 1999, dismissed.

10. The applicant now comes before us seeking leave, putting forward many of the grounds which have been traversed in the court below. He also seeks to re-open an interlocutory matter dealing with specific discovery of documents by the respondents.

11. It is unnecessary to rehearse the points advanced on this application. The Court of Appeal was undoubtedly right to dismiss the application for leave. No new matter has been put before us to suggest that, as a matter of discretion, leave to appeal should be granted now under s.22(1)(b).

12. The application is accordingly dismissed.