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CACV 218/2014
[2021] HKCA 1062
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 218 OF 2014
(ON APPEAL FROM HCMP 436/2013)
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IN THE MATTER of the High Court Construction and Arbitration Proceedings No 46 of 2011
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| BETWEEN |
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ZEBRA INDUSTRIES (OROGENESIS NOVA) LTD-[ZION] |
Plaintiff |
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and
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WAH TONG PAPER PRODUCTS GROUP LTD |
Defendant |
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| Before : |
Hon Cheung JA, Chu JA and Barma JA in Court |
| Date of Judgment : |
28 July 2021 |
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. On 27 April 2017, this court (Cheung JA, Chu JA and Barma JA) handed down a judgment (“Judgment”) dismissing the plaintiff’s appeal against the decision of Mimmie Chan J dated 31 October 2014, refusing leave to the plaintiff to commence proceedings for committal for contempt of court against the defendant, Wah Tong Paper Products Group, and its solicitors. The plaintiff was represented before us, as it was in the court below, by its director Mr Elijah Saatori. The application below, the appeal before us and this application were dealt with on an ex parte basis, with only the plaintiff appearing.
2. The matter has a long litigation history, which has been summarised in [2] to [17] of the Judgment. The facts and issues and this court’s reasons for dismissing the appeal were also set out in the Judgment, and will not be repeated here.
3. By a Notice of Motion dated 7 May 2017, the plaintiff applied for leave to appeal to the Court of Final Appeal. We consider it appropriate to deal with the application on paper notwithstanding the plaintiff’s request for an oral hearing and apologise for the delay in doing so.
4. In support of the application, the plaintiff filed a 35-page Notice of Motion and 10-page submissions, to both of which the plaintiff attached various documents as appendices. There is, however, no explanation in the Notice of Motion or the submissions as to how the appendices are relevant to the application for leave to appeal to the Court of Final Appeal[1]. Moreover, at least some of those documents appear to have been “updated” and were not the same as the documents exhibited and provided to the court below[2]. In the circumstances, we will not place any weight on the documents appended to the Notice of Motion and the submissions.
5. Under section 22(1) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the Ordinance”), this court may only grant leave when 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 of Final Appeal for decision.
6. It is incumbent on a party who seeks leave under section 22(1) to formulate the question or questions said to be of great general or public importance: Happy Dragon Restaurant Ltd v Director of Lands (unreported, CACV 201/2009, 8 June 2010), [5], per Le Pichon JA.
7. The plaintiff did not formulate any specific question of great general or public importance in either the Notice of Motion or the submissions. Nor can we see any such question arising in the proposed appeal. This court has already explained in the Judgment why the five alleged instances of perjury relied upon by the plaintiff, whether viewed individually or cumulatively, do not justify the bringing of proceedings for contempt. A repetition of its submissions previously canvassed cannot give rise to any question which ought to be submitted to the Court of Final Appeal for decision.
8. In addition, the plaintiff does not appear to dispute the relevant principles as summarised by Mimmie Chan J in [4]-[5] of the decision below, and by this court in [19] of the Judgment. Its complaints are mainly directed at the application of the relevant principles to the facts of the present case (in particular, whether the alleged perjury had serious adverse impact on the plaintiff and whether the impact of the alleged perjury would justify the bringing of contempt proceedings despite the substantial delay). That any question that may arise from such complaints is fact-sensitive is self-evident. They raise no question of great general or public importance that should be submitted to the Court of Final Appeal for consideration.
9. Finally, we would add that although the plaintiff repeatedly claimed in the Notice of Motion and its submissions that this court had found and/or agreed that the defendant “did not tell the truth” as to the terms of the agreement between the parties, this is incorrect. At [29] of our Judgment, merely recorded that “it was indeed the submission of the defendant that the terms of the contract were not as Mr Saatori and the plaintiff contended…”, and [30] of our Judgment made it clear that this court had real reservations about the merits of the allegation of perjury.
10. For these reasons, this case does not meet the requirements of section 22(1) of the Ordinance. The Notice of Motion is therefore dismissed.
(Peter Cheung)
Justice of Appeal |
(Carlye Chu)
Justice of Appeal |
(Aarif Barma)
Justice of Appeal |
The plaintiff acting in person
[1] Save for some “annotations” in red on the documents themselves which appear to be Mr Saatori’s own comments on the content and effect of such documents.
[2] For example, at the bottom of Table 3 in Appendix C to the Notice of Motion, it was stated “NB: Annotations Are Updated From Pages 1 – 4 In EXHIBIT THREE of Elijah’s Affirmation of January 14th AD 2014 for ACCURACY in this Committal Application on March 24th AD 2014.”
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