THE HONG KONG POLYTECHNIC UNIVERSITY v. REHABAID SOCIETY

FAMV No. 18 of 2024

[2024] HKCFA 13

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 18 OF 2024 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 402 OF 2022)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal to the Court of Final Appeal with costs after hearing counsel for the applicant and without calling on counsel for the respondent. We indicated we would hand down our reasons for doing so in due course, which we now do.

2.  The underlying dispute in this litigation concerns the applicant’s occupation of space on the respondent’s campus for an out-patient service centre called the Rehabaid Centre. The respondent wished to recover the space for its own purposes and gave notice to the applicant to terminate its licence to occupy the space in question under a Memorandum of Agreement dated May 1988 (“MOA”). At trial, the judge dismissed the respondent’s claim to recover possession and, although he did not accept the applicant’s case that it was entitled to occupy the space indefinitely, granted an order of specific performance of the MOA on the applicant’s counterclaim.[1]

3.  The respondent appealed to the Court of Appeal which reversed the judge and held that the MOA was, either as a matter of construction or as a matter of implied term, terminable by the respondent giving reasonable notice in the event that the collaboration or cooperation between the Rehabaid Centre and a Jockey Club-funded Rehabilitation Engineering Centre ceased.[2] It is of significance that, in the Court of Appeal, the applicant did not press its case that the licence was perpetual and that remained the position before us.

4.  The applicant applied to the Court of Appeal for leave to appeal to the Court of Final Appeal, contending that the proposed appeal involved four questions of law of great general or public importance. These are set out at [3] in the judgment of the Court of Appeal refusing leave to appeal.[3] From that refusal, the applicant renewed its application to the Appeal Committee seeking leave to appeal in respect of the same four questions.

5.  Despite the tenacity and forensic enthusiasm with which they were advanced by counsel on behalf of the applicant, we were satisfied that none of those questions satisfy the threshold for the grant of leave to appeal to the Court of Final Appeal.

6.  The dispute is, at root, a simple one concerning the subsidised occupation of space on the respondent’s campus by the applicant, involving two questions: whether the licence could be terminated unilaterally by the respondent and, if so, on what terms it could be so terminated. As already noted, it was not the applicant’s case that the licence was perpetual. Instead, the applicant took issue with the circumstances in which the respondent was entitled to give reasonable notice to terminate. The Court of Appeal concluded, having regard to the factual matrix of the MOA, that the licence was terminable unilaterally by the respondent giving reasonable notice upon the cessation of cooperation between the Rehabaid Centre and the Rehabilitation Engineering Centre.

7.  We were not persuaded that the questions said to be involved in the proposed appeal either satisfy the threshold of reasonable arguability or of sufficient general or public importance to justify the grant of leave. This is a case in which the Court of Appeal analysed the evidence closely and reached a conclusion in favour of the respondent on both the construction of the licence and on the basis of an implied term in it. The questions said to be involved in the appeal are essentially a means to request the Court of Final Appeal to undertake the same fact-sensitive exercise of interpretation already undertaken by the judge and the Court of Appeal but which the applicant wishes to be repeated, for a third time, in the hope of achieving a different answer. That is not a proper basis for the grant of leave to appeal.