TANG CHE TAI AND OTHERS v. TANG ON KWAI AND OTHERS

CACV 137/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 137 OF 2007

(ON APPEAL FROM HCA NO. 331 OF 2002)

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DECISION

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Hon Tang VP (giving the decision of the Court):

1.  This is the 1^st, 3^rd and 4^th defendants’ (“these defendants”) application for leave to appeal to the Court of Final Appeal under section 22(1)(a) and (b) of Court of Final Appeal ordinance, Cap. 484.  The plaintiff, the 1^st, 3^rd and 4^th defendants are managers of the Tang Kwong Yu Tong (“the Tong”).  The Tong originally had 6 fongs but the 4^th fong has become extinct.  At the time of the commencement of the proceeding, the 1^st fong had 22 members, the 2^nd fong had 11 members, the 3^rd fong had 5 members, the 5^th fong had 151 members, and the 6^th fong had 17 members.  The 1^st Defendant is a member of the 1^st fong, the 2^nd Defendant from the 2^nd fong (since deceased), the 3^rd Defendant from the 5^th fong, the 4^th Defendant from the 6^th fong, and the 1^st Plaintiff from the 3^rd fong.  They were appointed to represent their respective fong.

2.  These defendants’ counterclaim principally concerned whether compensation from resumption of Tong land paid to the Tong between 1998 and 2000 totalling $73,443,081 should be distributed and if so, the basis of distribution.  These defendants’ claimed that 92% of the compensation should be distributed per capita and 8% per stirpes.  In their counterclaim, they claimed a declaration to that effect as well as an order for distribution.

3.  We have dismissed their counterclaim.  They apply for leave to appeal to the Court of Final Appeal.

4.  The plaintiff accepts that the appeal lies as of right under section 22(1)(a) because:

“(1)   It is an appeal from a final judgment of the Court of Appeal in a civil cause where the appeal involves some claim of question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more. 

(2) The property in question is the land compensation proceeds of some $73 million in value received by (the Tong), of which the Defendants are members and the Managers.”

5.  The plaintiff has referred us to China Field Ltd v. Appeal Tribunal (Buildings), unreported, FAMV 78/2008, dated 20 January 2009. 

6.  China Field Ltd is a decision of the appeal committee.  In the judgment of the appeal committee delivered by Ribeiro PJ, he said that section 22(1)(a):

“23.   … undoubtedly focuses on the value of the claim which is the subject-matter of the appeal and not on any property or right which has some connection with that claim.  … Thus, in a proposed appeal concerning a landlord and tenant dispute, whether looked at from the perspective of the landlord or of the tenant, the appeal must be viewed as involving the value of the tenancy in dispute and not the capital value of the land owned by the landlord. …

……

24.    Consistently with the strict approach adopted in relation to the first limb of section 22(1)(a), it is only proper to ascribe a value which qualifies for leave as of right to the candidate claim or question if (i) on the evidence, such value is clearly quantifiable as a value of $1 million or more; and (ii) the court is satisfied that the Court’s order made upon disposing of the proposed appeal would take effect by immediately conferring or imposing on the relevant parties a financial benefit or detriment in the quantified amount.  It is not enough that one is able plausibly to say that such a financial impact is a likely  eventual result of the appeal.”

7.  So the question here is whether these defendants’ claim was in respect of property amounting to or of the value of $1 million or more. 

8.  We noted in our judgment that:

“1. … In 2002, when the writ was issued, the Tong had 206 members. …”

9.  92% of the $73,443,081 is $67,567,634.50.  If that is divided by 206 members, each member would be entitled to $327,998.22.  These defendants together would be entitled to $983,994.67.  As noted, the total sum of $73,443,081 was paid to the Tong between 1998 and 2000.  There is no evidence, but it is inconceivable that no interest would have been earned on the capital sum.  Even if only 2% interest have been earned on the capital, the property in respect of which the 3 applicants claimed would have exceeded $1 million.  That being the case, we believe this is a case where leave to appeal must be granted as of right.

10.  The 1^st, 3^rd and 4^th defendants claim that they have the authority of other members of the Tong to represent them in applying for leave to the Court of Final Appeal.  We gave them an opportunity to supply us with evidence.  On 2 March 2009, they supplied certain documents.  Messrs Rowdget W. Young & Co., the plaintiff’s solicitors, in their letter of 5 March 2009 submitted that:

“… the documents are not authorization from any other member of the (Tong) to authorize the 3 Applicants to represent them in applying leave to the Court of Final Appeal.”

We agree.

11.  However, having regard to the fact that they were appointed as managers to represent their respective fong, it is likely that they would have the support of at least some other members of their fongs.  Be that as it may, it is unnecessary for us to deal with that because the personal claim of these 3 applicants qualified for leave.

12.  We turn to consider the question of security for the purpose of the appeal.  The usual amount ordered is $400,000 and there is no reason why the same amount should not be ordered.  These defendants wish to be given time to provide the security.  In all the circumstances, they should have two months to provide the security.  The costs of this application should be in the cause of the appeal.