CHAN KING TONG v. HENRY FRANCIS LUE & OTHERS

CACV 942/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 942 OF 2001

(ON APPEAL FROM HCA 828/1997)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application made out of time for leave to appeal to the Court of Final Appeal. The factual background to this case is set out in the judgment of this court and will not be repeated, save to say this: The basis of this application is that it is now said on the plaintiff's behalf that the foundation of the plaintiff's case in the way it was pleaded and formed part of a factual agreement which was agreed between both parties in the court below and was put in this court, was wrong; that this is of fundamental importance to the plaintiff's claim and the agreement as to facts was made without instructions in the court below. In this court the plaintiff represented himself.

2. As far as this application is concerned Mr Lai, who has said all he can on behalf of the plaintiff, has in effect conceded that he cannot rely upon the proposition that the matter in dispute is of the value of $1 million or more and therefore has to rely upon this matter being of great general or public importance.

3. The major difficulty, it seems to me, is that it is wholly wrong to give leave to appeal under that heading for a matter which is primarily a disputed question of fact as well as a fundamental change of case which will be raised for the first time in the Court of Final Appeal and relates to this case and this case only. Therefore, it does not seem to me that the basis of this application falls within that head.

4. It seems to me, on the basis of the submissions which have been made by Mr Lai on behalf of the plaintiff today, that if the plaintiff is correct in what is now said, then it is a clear case for an investigation of whether proceedings could be taken against the lawyers who represented the plaintiff in the court below and it seems to me that, on the basis of what we have been told this morning, if that is correct, that claim should be, or may well be, a good one.

5. In those circumstances, I do not consider that this is an appropriate case to grant leave to appeal to the Court of Final Appeal.

Hon Le Pichon JA:

6. I agree.

Hon Cheung JA:

7. I agree.