LAM PO CHIU MARK v. ION GLOBAL (BVI) LTD AND OTHERS

CACV 46/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 2010

(ON APPEAL FROM HCA NO. 4754 OF 2003)

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Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal from a decision of this Court which was given on 15 September. On that occasion, this Court allowed the appeal, although it has to be said that in any event the judge below had great sympathy for the plaintiff’s case.

2.  The ground upon which this application is made is that it is a liquidated claim which exceeds the amount in section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

3.  As Mr Man has pointed out in his skeleton argument, to which he has also addressed us on this application, the amount is not a liquidated amount because, although it is a fairly simple calculation, it is dependent upon a figure which the court either has to find itself or has to find on the agreed evidence.  In those circumstances, however simple the calculation might be, it is not a liquidated amount because it is dependent upon a finding of a particular figure in the calculation.

4.  This point clearly took the defendants by surprise and they have also, belatedly, asked that this Court should exercise its discretion under the ‘or otherwise’ ground.

5.  I regret I see no basis for doing that and, in any event, it is the fairly standard practice of this Court that this Court does not give leave under the ‘or otherwise’ ground but leaves that matter to the Court of Final Appeal to decide whether they consider it is an appropriate case to be heard by them.

6.  In those circumstances, I would refuse the application for leave to appeal.

Hon Le Pichon JA:

7.  I agree.

Hon Lam J:

8.  I also agree.