CHAN KAM HOI v. DRAGAGES ET TRAVAUX PUBLICS

IN THE COURT OF APPEAL

1997, No. 58
(Civil)

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J U D G M E N T

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Nazareth, V.-P.:

1. The applicant/plaintiff, whom we have heard but whom we have now had to have removed from the Court because of his persistent shouting and disruption of the proceedings, applies to this Court by motion for an order that he have leave to appeal to the Court of Final Appeal from the decision of Court of Appeal given on 9th May 1997. By that decision the defendant/respondent's appeal against the order of Liu JA was allowed and paragraph 3 in the applicant's statement that accompanied his notice of appeal to this Court was deleted.

2. Section 22(1) of the Hong Kong Court of Final Appeal Ordinance provides that:

"An appeal shall lie to the Court in any civil cause or matter -

(a) as of right, from any final decision of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 million or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil rights amounting to or of the value of $1,000,000 or more; and

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the quesition 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."

3. As to (a), no final judgment has yet been given by the Court of Appeal. What has been dealt with is an interlocutory matter of the striking-out or otherwise of paragraph 3 in the notice that accompanied the applicant's notice of appeal.

4. The second limb on which an appeal will lie is at the discretion of the Court of Appeal or the Court of Final Appeal from any other judgment of the Court of Appeal whether final or interlocutory if in the opinion of Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its general or public importance, or otherwise, ought to be submitted to the Court for decision.

5. The decision that the applicant wishes to appeal as indicated, relates to the statement we have mentioned that was attached to his notice of appeal. It is simply that he disputes that payment into court of $700,000 was made by the defendant in the substantive proceedings. Such a statement cannot by O59 r12(A) be mentioned in a notice of appeal or communicated to the Court of Appeal until any question as to the amount of damages (which is the relief sought by the applicant in his substantive appeal to this Court) has been decided; it must be omitted, and has therefore to be struck out. It is such striking out that the applicant seeks to challenge. By no stretch of one's imagination can that be said to be a matter of great general or public importance, or one that otherwise ought to be submitted to the Court of Final Appeal for decision.

6. Plainly, therefore, leave has to be refused. We accordingly refuse leave and make anorder nisi that the respondent is to have its costs of the motion.