WOO HING KEUNG LAWRENCE v. CEF BROKERAGE LTD

CACV 148/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 148 OF 2007

(ON APPEAL FROM HCCL 39 OF 2004)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court) :

1. The plaintiff applies for leave to appeal to the Court of Final Appeal against our judgment of 19 March 2008.

2. The plaintiff relies on both limbs of section 22(1) of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’) (Cap. 484).

3. In respect of the ‘as of right’ ground, the plaintiff argues that the parties have agreed on the amount of damages at slightly over $8.9 million and thus the damages are liquidated in nature which gives the plaintiff the right to appeal.

4. We disagree.  This provision must be strictly construed : see Cheng Lai Kwan v. Nan Fung Textiles Ltd [1999] HKLRD 469 applying Zuliani v. Veira [1999] 1 WLR 1149.  The plaintiff’s claim started off as an unliquidated claim for damages.  The mere fact that the parties have reached an agreement on the amount does not make it a liquidated one.  In any event there was a dispute on whether there was in fact an agreement on the quantum.

5. As to section 22(1)(b), the plaintiff first argues that leave should be granted under the ‘or otherwise’ ground because it is a matter of utmost probability or virtual certainty that the damages would exceed the $1 million threshold.  In our view even if that is the case it is nonetheless subject always to the grant of leave being justified by the apparent merits of the appeal.  As Riberio PJ said in Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260 the words ‘or otherwise’ are found in the context of the Ordinance laying down the high threshold requirement that the appeal should involve a question of great general or public importance.

6. In our view no question of great general public importance is involved in the present case.  The case turns on the agreement between the parties, the construction of the relevant rules and the issues as framed by the parties at the trial and before us.

7. The application is accordingly refused on the merits.

8. Since we have considered the application on the merits it is not necessary to address the issue concerning the delay in the service of the notice of intended application.