GREAT PACIFIC INVESTMENTS LTD v. 张华荣

CACV 206/2023, [2025] HKCA 266

On appeal from [2023] HKCFI 1539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 206 OF 2023

(ON APPEAL FROM HCA NO 13 OF 2022)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the defendant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 11 December 2024 (“CA Judgment”)[1]. We dismissed the defendant’s appeal against the decision of Deputy High Court Judge M K Liu on 5 June 2023[2]. DHCJ M K Liu had dismissed the defendant’s appeal against the order of Master D To granting liberty to the plaintiff to enter partial final judgment for RMB 55 million, and further allowed the plaintiff’s application for final judgment entering judgment against the defendant in the total sum of RMB 162.2 million (which included the RMB 55 million) with interest.

2.  Both parties have lodged written submissions pursuant to Practice Direction 2.1. Having considered the submissions and the papers, we think it is appropriate to determine the application on paper and proceed to do so.

Analysis and Disposition

3.  In the Notice of Motion, the defendant did not raise any question of great general or public importance at all. He merely seeks to rely on the “or otherwise” limb, contending that the Court of Appeal was “demonstrably wrong” in finding that the court below was correct in rejecting the estoppel defence.

4.  It is the practice of this court to leave the “or otherwise” limb to be decided by the Appeal Committee of the Court of Final Appeal. It is well established that the discretion to grant leave to appeal on the “or otherwise” limb is exercised in exceptional circumstances.

5.  Mr Lawrence Cheung contended for the defendant that the Court of Appeal has an overriding discretion to allow an appeal to be brought in “undefined circumstances” in “very exceptional circumstances”, relying on Swire Properties Ltd & Ors v Secretary for Justice [2002] 4 HKC 117 at 134 B to F.

6.  We do not think that the circumstances of the present case would justify the exercise of the overriding discretion to grant leave. In particular, in the present application, Mr Cheung essentially seeks to re‑argue the contentions which have been rejected by this court in the appeal and the defendant failed to put forward any argument to refute the plaintiff’s case regarding the no oral modification clause[3] and the plaintiff’s rejection of the defendant’s Form 16 which has the effect of giving reasonable notice that ended all suspensory estoppel, if any, which is fatal to the defendant’s case[4]. All in all, for the reasons sufficiently explained in the CA Judgment, the defendant’s intended appeal is devoid of merits.

7.  Therefore, we decline to grant leave on the “or otherwise” ground and dismiss the Notice of Motion.

8.  There is no reason to depart from the general rule that costs of the application should follow the event. The plaintiff filed a statement of costs for this application in the sum of $98,166.66, of which $76,000 is the fee for two counsel. As the same team of legal representatives is engaged and a substantial part of the arguments involved in the present application is the same as the one canvassed in the appeal, we take the view that the plaintiff’s costs are on the high side. Moreover, we do not think that it necessary to engage two counsel. Taking a broad‑brush approach, we summarily assess the plaintiff’s costs of this application at $75,000. The costs order and summary assessment are in the nature of orders nisi and will be made absolute if no application for variation is made by any party within 14 days of the handing down of this judgment.