FACV No. 16 of 2009
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
FINAL APPEAL NO. 16 OF 2009 (CIVIL)
(ON APPEAL FROM CACV NO. 177 OF 2008)
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Between
THANAKHARN KASIKORN THAI CHAMKAT (MAHACHON) also known as KASIKORNBANK PUBLIC COMPANY LIMITED
Appellant
and
AKAI HOLDINGS LIMITED (IN LIQUIDATION)
Respondent
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Court : Mr Justice Bokhary PJ (sitting as a single permanent judge)
Date of Hearing : 11 June 2010
Date of Decision : 11 June 2010
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D E C I S I O N
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Mr Justice Bokhary PJ :
1. Does a respondent to a civil appeal to the Court of Final Appeal need leave to bring a cross-appeal? If so, is the grant of such leave liable to the imposition of conditions under s.25 of the Court’s statute? Those are the two questions on which I am asked to make directions in the exercise of the powers of a single permanent judge under s.46 of the Court’s statute. I understand the respondent company in liquidation (to which I will refer as “Akai”) to contend that the answer to each question is “No”. The appellant bank (to which I will refer as “Kasikornbank”) contends that the answer to each question is “Yes”.
2. Akai's action against Kasikornbank was dismissed with costs nisi by the High Court. Allowing Akai’s appeal with costs nisi , the Court of Appeal, entered judgment for Akai in the sum of US$22.5 million plus interest. The hearing of Kasikornbank's appeal to the Court of Final Appeal will commence on 11 October this year. Akai is not content simply to defend the result which it achieved in the Court of Appeal. Its printed case concludes by contending that the Court of Appeal's judgment should be varied so that judgment be entered for it in the higher sum of US$52.8 million plus interest.
3. A respondent to a civil appeal to the Court of Final Appeal who seeks to defend a result on further or other grounds does not need leave to advance such grounds. It may do so simply by including such grounds in its printed case. But what Akai is seeking to do goes beyond defending a result on further or other grounds. It is seeking to improve the result in its favour. So its endeavour amounts in reality to a cross-appeal.
4. A cross-appeal is a specie of appeal. It is therefore an appeal. And a party who seeks to bring and then brings a cross-appeal assumes the obligations of a would-be appellant and then an appellant. In my view – and I so direct – a respondent to a civil appeal to the Court of Final Appeal who wishes not merely to defend but actually to improve the result in its favour must do so by way of a cross-appeal for which leave is needed, and the grant of such leave is liable to the imposition of conditions under s.25 of the Court's statute. I take this view on a purposive and reasonable construction of the scheme created by the Court’s statute and on the nature of a cross-appeal as explained by the Court of Final Appeal in Common Luck Investment Ltd v. Director of Legal Aid (2002) 5 HKCFAR 467 at p.478 D-F. It is a view which, as it seems to me, also happens to match the Privy Council’s practice, as to which my attention has been drawn to Bentwich’s Privy Council Practice , 3rd ed. (1937) where this is said in regard to cross-appeals at pp 173-174 :
“ Every party who feels aggrieved by a decree may appeal against that part of it which he complains of. Each party so appealing should lodge a petition of appeal at the Council Office. A petition for leave to enter a cross appeal is addressed to His Majesty in Council. Where a cross appeal was ordered to come to a hearing on the same printed case as the principal appeal, liberty was reserved to the respondent, if the principal appeal was dismissed for non-prosecution, to prosecute the cross appeal as a separate cause. If the appeal is from part only of a decree, the whole is not open to the respondent, who should therefore present a cross appeal if he desires to review the whole decree.
Leave to the respondents to cross appeal may be given at the hearing, though a petition has not been lodged before : cf. Toronto Ry. v. King , [1908] A.C. 260.
And when the merits of the case are clear, and the Judicial Committee have given leave to bring a cross appeal, it may grant the respondents what they would have been entitled to if they had entered a cross appeal, though it has not in fact been entered : cf. Cassin Ahmed Jerva v. Naranan Chetty , 37 I.A. 133.”
5. Normally applications for leave to appeal to the Court of Final Appeal are made to the Appeal Committee only after such leave has been refused by the court from which the applicant wishes to appeal. The Appeal Committee is entitled to – and normally would – insist that a leave application be made to that court first. But on a purposive and reasonable construction of s.24 of the Court's statute, I do not think that the Appeal Committee is required to regard a prior refusal of leave as mandatory in circumstances like the present where dates for the hearing of the appeal have been fixed and the leave to be sought is for the bringing of a cross-appeal. The Court of Final Appeal could grant such leave at the hearing of the appeal. And by far the more convenient course in a situation like the present is for an application made to the Appeal Committee without any need for a prior refusal of leave.
6. I direct that Akai's application for leave to cross-appeal and the questions of conditions and a supplemental printed case by Kasikornbank to resist the cross-appeal go straight to Appeal Committee. Counsel indicated in the course of the argument that leave would not be opposed if I were to hold that leave is needed. I have now so held. If conditions are agreed and there is agreement as to the filing of a supplemental printed case, the Appeal Committee will deal with the matter on the papers without an oral hearing. I hope that that will turn out to be what happens. Otherwise there will be an oral hearing before the Appeal Committee to come on at 2:30 pm on the 9th of next month.
7. All that remains for me to do, apart from thanking counsel, is to hear them on the costs of this application to me.
[Submission on costs]
8. The costs of this application to me will be Kasikornbank's costs in the cross-appeal.
(Kemal Bokhary)
Permanent Judge
Mr Eugene Fung (instructed by Messrs Baker & McKenzie) for the appellant bank
Ms Linda Chan (instructed by Messrs Hogan Lovells) for the respondent company in liquidation