SHUM KAM FAI v. LAM CHI WAI AND ANOTHER

FAMV No. 38 of 2002

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 38 OF 2002 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 3376 OF 2001)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. This application for leave to appeal to the Court of Final Appeal arises out of a personal injury action brought by the applicant. He having obtained interlocutory judgment, his damages were assessed by a Master. The Master awarded him $4,274,352.90 damages. But the Court of Appeal reduced this award by $3,113, 414.40, leaving him with$1,160,938.50 damages. He then asked the Court of Appeal for leave to appeal to the Court of Final Appeal. But the Court of Appeal refused leave. And he now asks us for leave.

2. On appeal to the Court of Appeal, three heads of damages were in dispute. One was loss of pre-assessment earnings in respect of which the Master awarded $651,026.40. The second was loss of post-assessment earnings in respect of which the Master awarded $2,799,888.00. And the third was increased operational cost in respect of which the Master awarded $78,438.50.

3. The Court of Appeal refused to interfere with the award in respect of increased operational cost. But they reduced the award in respect of loss of pre-assessment earnings by $313,526.40 from $651,026.40 to $337,500.00 and set aside the whole of the award of $2,799.888.00 in respect of loss of post-assessment earnings. That is how the applicant's total award of damages was reduced by $3,113,414.40.

4. Insofar as is material to this application, s.22(1) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides that an appeal shall lie to the Court of Final Appeal -

"(a) as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more;

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision; ..."

5. In Cheng Lai Kwan v. Nan Fung Textiles Ltd (1997-98) 1 HKCFAR 204 this Committee held that the precise figure in s.22(1)(a) did not include an award of unliquidated damages. The figure in the present case exceeds $1,000,000.00 only if the award in respect of loss of post-assessment earnings are taken into account, and that award is an award of unliquidated damages. The Master has not liquidated those damages. She has merely assessed them.

6. So this application falls to be considered under the "or otherwise" limb of s.22(1)(b). As we said in Cheng's case, this is the limb under which we exercise a discretion equivalent to the one of which the Privy Council spoke in Zuliani v. Veira [1994] 1 WLR 1149 when it said this at p.1155 D-F:

"In providing that the automatic right of appeal should arise only where the matter in dispute was of the value of (or in excess of ) a precise figure the legislature has chosen not to include an award of unliquidated damages. In the view of their Lordships this provision should be strictly construed. No doubt there will be many cases, of which the present is one, where it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately awarded will be in excess of EC$5,000, and in such cases the Court of Appeal may very well think it right, as general rule, to grant leave in the exercise of its discretion. Equally, however, there may be cases - and again the present case may serve as an example - where the likely amount of damages is at or above the statutory threshold, but which are so lacking in merit that the Court of Appeal in its discretion would refuse leave."

7. If the Master was right in regard to post-assessment earnings, then the Court of Appeal would have erroneously deprived the applicant of damages in excess of the statutory threshold. But unless there are at least reasonable prospects of those damages being restored to the applicant if this matter were to proceed to the Court of Final Appeal, then it would not be appropriate for us to let it proceed there. Are there such prospects?

8. In our view, there are none. Accordingly we refuse leave to appeal.

[The respondents asking for costs and
the applicant not resisting them, the application
was dismissed with costs to the respondents.]