LOKE MEI YUK, MIMI v. THE HONGKONG AND SHANGHAI BANKING CORPORATION LTD

CACV77/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 77 OF 2007

(ON APPEAL FROM HCA 1819 OF 2006)

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DECISION

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Hon Chu J (giving the Decision of the Court):

1.  This is the plaintiff’s application by Notice of Motion dated 16 April 2008, seeking leave to appeal to the Court of Final Appeal against the Judgment of this Court handed down on 19 March 2008 (“the Judgment”).

2.  By the Judgment, we dismissed the plaintiff’s appeal against the Decision of Deputy High Court Judge L Chan, dismissing her appeal against the Order of Master Yu striking out her Statement of Claim in HCA 1819 of 2006 and dismissing the action as against the 1^st defendant, and also dismissing her summons dated 20 September 2006, seeking separate trials, consolidation and striking out of the Defence and Counterclaim of the 2^nd defendant in the action together with costs. We also ordered the plaintiff to pay the 1^st defendant the costs of the appeal, to be taxed if not agreed. 

3.  The 1^st defendant opposes the plaintiff’s application for leave to appeal.

The relevant law

4.  Applications for leave to appeal to the Court of Final Appeal in respect of civil cases are governed by section 22(1) of the Hong Kong Court of Final Appeal Ordinance, cap. 484 (“the ordinance”). For the present purpose, only section 22(1)(a) and (b) have to be considered. They provide as follows:

“(1)   An appeal shall lie to the Court- 

(a)  as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1000000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1000000 or more;

(b)  at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, 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 for decision”.

Section 22(1)(a) of the Ordinance

5.  Under section 22(1)(a) of the Ordinance, an applicant may appeal as of right to the Court of Final Appeal where: (1) the intended appeal is against a final judgment of the Court of Appeal; and (2) the intended appeal involves a claim for a liquidated sum amounting to HK$1 million or more.

6.  In the present application, the plaintiff’s intended appeal stems from the Master’s decision to dismiss her Statement of Claim and action against the 1^st defendant and to dismiss her summons dated 20 September 2006.  In so far as the dismissal of the summons dated 20 September 2006 is concerned, that is clearly a decision on an interlocutory application.

7.  As to the decision on an application to strike out the Statement of Claim and dismiss the action, it is also not a final judgment for the purpose of section 22(1)(a) of the Ordinance: see B+B Construction Ltd v. Sun Alliance and London Insurance Plc (2000) 3 HKCFAR 503 at 506H-I and Law Siu Yun Ada v. Lo Hung Kwan (unreported) CACV 1034/2000 at para.2.      

8.  It therefore follows that the Judgment is an interlocutory judgment and not a final judgment within the meaning of section 22(1)(a).

9.  Further, section 22(1)(a) has no application where the claim is for unliquidated damages: Cheng Lai Kwan v. Nan Fung Textiles Ltd (1997-98) 1 HKCFAR 204 and Chao Keh Lung v. Don Xia (2004) 7HKCFAR 260.

10.  It is evident from the Statement of Claim filed by the plaintiff as summarised in paragraph 3 of this Court’s Judgment handed down on 19 March 2008 that the plaintiff’s claim is for unliquidated damages. The plaintiff had also stated in her written submission for this application that the losses claimed by her are estimates (at paragraph 28) and as such, are unliquidated.

11.  Accordingly, the present application does not come within section 22(1)(a).  The intended appeal to the Court of Final Appeal does not lie as of right.

Section 22(1)(b) of the Ordinance

12.  We turn to consider the discretion under section 22(1)(b) of the Ordinance. In order for leave to be granted under the sub-section, an applicant has to show that the intended appeal involves a question which, by reason of its great general and public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

13.  In the present application, the plaintiff had not set out the grounds of her intended appeal in the Notice of Motion. She had also not formulated any question for determination by the Court of Final Appeal. In any case, having considered her submissions and the materials before the court, we cannot see any question of great general and public importance in her claim or intended appeal.  The argument of “vicarious liability in tort of conjugal invasion”, on which the plaintiff relies heavily, is plainly unsustainable in law.

14.  There is also nothing in the plaintiff’s claim or intended appeal for us to grant leave on “the otherwise” limb of section 22(1)(b).

Sections 31 and 32 of the Ordinance

15.  The plaintiff also refers to sections 31 and 32 of the Ordinance. The two sections deal with appeals and leave to appeal to the Court of Final Appeal in criminal cases.  High Court Action No. 1819 of 2006, on which the intended appeal is based, is a civil claim. She submitted that she wished to convert her claim into a criminal matter. But that is not possible. There is no proper basis for us to consider sections 31 and 32 of the Ordinance.  

16.  For the above reasons, the plaintiff’s application for leave to appeal to the Court of Final Appeal has to be dismissed.

Costs

17.  The normal rule is for costs to follow event. The plaintiff argues that the rule should not be followed and that she should not be made liable for the costs of this application. She says she is a victim and it is unfair to make her bear the costs. She asks that the costs be met by the public fund because this is a criminal matter.  We cannot agree there are good reasons for departing from the normal rule.  The 1^st defendant’s costs of this application should be paid by the plaintiff. 

18.  Having regard to the nature of this application and the documents involved, it would be appropriate to make a gross sum costs order under Order 62 rule 9(4)(b) of Rules of the High Court rather than incurring additional time and costs in having the costs taxed.  We are of the view that, on a party-and-party basis, $30,000 would be an appropriate amount. 

Conclusion

19.  Accordingly, we dismiss the plaintiff’s application for leave to appeal to the Court of Final Appeal. We further order that the plaintiff pays the 1^st defendant the costs of the application assessed in the amount of $30,000.