MISCELLANEOUS PROCEEDINGS NO. 76 OF 2008 (CIVIL)
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GOLDEN SANDS LIMITED |
Plaintiff/Applicant |
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and |
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MTR CORPORATION LIMITED |
Defendant/Respondent |
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And
IN THE COURT OF FINAL APPEAL OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO. 77 OF 2008 (CIVIL)
(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 230 OF 2008)
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SOURCE INC. LIMITED |
Plaintiff/Applicant |
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and |
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MTR CORPORATION LIMITED |
Defendant/Respondent |
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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ
Date of Hearing: 27 March 2009
Date of Determination: 27 March 2009
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D E T E R M I N A T I O N
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Mr Justice Chan PJ:
1. Mr Kenneth Chan for the applicants submits that they are entitled to appeal as of right. The decision made by the Deputy Judge under Order 18 rule 19 was clearly not a final judgment for the purpose of s.22(1)(a) of the Court’s statute. See Sam Woo Bore Pile Foundation Ltd v China Overseas Foundation Engineering Ltd, FAMV No. 21 of 2007. In the light of this case, Mr Chan feels unable to advance any further arguments in addition to what was contained in his written submission. It is also accepted that Order 14A did not apply to this case. In any event, this alternative basis for MTRC’s application was never dealt with by the Deputy Judge and did not form any part of his decision.
2. Leave is also sought on the ground that the proposed appeals involve several points of law of great general and public importance. Several questions have been formulated in the Notice of Motion and elaborated upon by Mr Chan before us. But the real complaint is that the Court of Appeal had made procedural errors and that the applicants’ appeals should not have been dismissed without hearing the applicants on the merits. In support of this ground, Mr Chan applies to adduce as evidence Madam Lin’s affirmation deposing to the events leading to the hearing before the Court of Appeal and what happened before that court.
3. Looking at Madam Lin’s affirmation de bene esse, it is clear that prior to the hearing before the Court of Appeal, she was already aware that the appeals were expedited and that the Court of Appeal was anxious to deal with the matter on the scheduled date, 21 August 2008. She knew that leave for the applicant companies to act by their director had been refused on the day before and having been explained the consequences of this, she acknowledged to her former solicitors that she was not giving any further instructions or costs on account. To a large extent, it was her own choice that there was no one to address the Court of Appeal at the hearing. We take the view that in the circumstances of this case, it was entirely within the court’s discretion to dismiss the appeals. The complaint is fact specific and we fail to see how it can be said that any point of law of great general public importance is involved. It must also be noted that the Court of Appeal at the end of the hearing commented that there was no merit in the appeals. We are inclined to agree with that conclusion.
4. Accordingly, the applications for leave to appeal are dismissed with costs.
| (Kemal Bokhary) |
(Patrick Chan) |
(R A V Ribeiro) |
| Permanent Judge |
Permanent Judge |
Permanent Judge |
Mr Kenneth C L Chan and Mr Herbert Leung (instructed by Messrs Raymond Chan, Kenneth Yuen & Co) for the applicants
Mr Anderson Chow SC (instructed by Messrs Deacons) for the respondent