HIP HING TIMBER COMPANY LTD v. TANG MAN KIT and FOO TAK CHING

FACV No. 11 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 11 OF 2003 (CIVIL)

(ON APPEAL FROM CACV NO. 137 OF 2002)

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Handing Down of Reasons: 27 May 2004

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D E C I S I O N

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Mr Justice Bokhary PJ:

1. This appeal came before us the day before yesterday. We ordered that the hearing be stood down so as to enable the parties to:

(i) file a consent under s.34B(4)(c) of the High Court Ordinance, Cap. 4; and to then

(ii) go back to the Court of Appeal (Rogers VP and Le Pichon JA) to invite it to hand down afresh, without hearing further argument, the judgment which it had handed down on 11 December 2002, and to grant leave to appeal.

These are our reasons for taking that unusual course.

2. Section 34 B(4) lays down the purposes for which the Court of Appeal shall be duly constituted even if it consists of only two members. One of these purposes, being the one contained in item (c), is "hearing and determining any appeal where all the parties have before the hearing filed a consent to the appeal being heard and determined by 2 Justices of Appeal". We trust that the Court of Appeal will see fit to hand down its judgment afresh, without hearing further argument, after the filing of a s.34B(4)(c) consent and grant leave to appeal. That would eliminate the problem which would otherwise arise if Yuen J's judgment from which the appeal to the Court of Appeal was brought is, as may be the case, a final judgment rather than an interlocutory one.

3. We should of course avoid saying anything that might shade into the merits of this appeal. So we confine ourselves to a brief indication of why Yuen J's judgment may be final rather than interlocutory.

4. Yuen J set aside the writ and dismissed the action because she was of the view: (i) that the Heung was not a t'ong within the meaning of s.15 of the New Territories Ordinance, Cap. 97, so that it had no cause of action and could not authorise the bringing of proceedings on its own behalf; and (ii) that the individual plaintiffs could not maintain the action in their own right because they had not brought it in that capacity. The only issue raised in the original notice of appeal from Yuen J's judgment was that she was wrong to hold that the Heung was not a s.15 t'ong. We will refer to this as the first issue. In the supplemental notice of appeal the plaintiffs raised another issue, namely whether, if the Heung was not a s.15 t'ong, the individual plaintiffs would, as the persons who dealt with the defendant, have a cause of action in their own right, albeit as the trustees of the Heung. We will refer to this as the second issue.

5. In so far as Yuen J may be taken to have resolved the second issue against the plaintiffs, her judgment would seem to be interlocutory. But the Court of Appeal, while indicating that it saw no reason to resolve the second issue against the plaintiffs, allowed the appeal by reversing Yuen J's judgment on the first issue. And since Yuen J's judgment would have put an end to the first issue whichever way she resolved it, her judgment thereon would appear to be final rather than interlocutory. If so, the only avenue for an appeal from it to a two-member division of the Court of Appeal would be the one provided by s.34B(4)(c).

6. In Shell Hong Kong Ltd. v. Yeung (2003) 6 HKCFAR 222 we held that a judgment of a division of the Court of Appeal not constituted in conformity with s.34B would be a nullity. The course which we have taken in the present appeal is designed to avoid the danger that we will lack jurisdiction to entertain the merits because there is no effective judgment of the Court of Appeal from which to appeal to us.

7. In anticipation of a fresh handing-down by the Court of Appeal without hearing further argument following the filing of a s.34B(4)(c) consent and the granting by the Court of Appeal of leave to appeal, we have directed that the 8th, 9th and 10th of next month be kept available for a resumed hearing of this appeal, with the 11th reserved as a precaution. Ms Audrey Eu SC having some public duty to perform earlier that morning, we have directed that any hearing on the 10th will be not before 11.00 a.m.