HO WAI SANG v. FOK KAI AND ANOTHER

CACV 3883/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3883 OF 2001

(ON APPEAL FROM HCPI 1330/1999)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court which was handed down on 27 June of this year. In that judgment this court dismissed an appeal from a judgment of Suffiad J which had been given last year. Suffiad J had dismissed the plaintiff's claim but assessed the damages, in case he was wrong, at the sum of $2,278,195.

2. Before us today Mr Yau, who, together with his solicitors appears on a complimentary basis because legal aid has not been as yet granted to the appellant, has argued that his client should be entitled to leave to appeal as of right under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance and in the alternative, the court's discretion should be exercised to grant leave to appeal under section 22(1)(b).

3. Turning first to the application under section 22(1)(a), the question is as to whether the case comes within the words of the section, "the matter in dispute on the appeal amounts to or is of the value of $1,000,000 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, $1,000,000 or more."

4. Now, clearly, there could well be arguments based upon the fact of the assessment of damages by Suffiad J, well over that figure of $1,000,000, that this case comes within that category. However, there has recently been a judgment of another division of this court which referred to the decision of the Court of Final Appeal in Cheng Lai Kwan v Nam Fung Textiles (1997-1998) 1 HKCFAR 204.

5. Based on that decision, the other division of this court in the case of Shum Kam Fai v Lam Chi Wai and The Kowloon Motor Bus (1933) Limited on 17 October 2002, came to the conclusion that Section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance did not apply to a case where damages had been assessed and the Court of Appeal had held against the plaintiff for that amount assessed.

6. In my view, it would be undesirable for this division of this court to come to a different conclusion in this respect from the other division and it is far better, because this matter is likely to arise on many occasions in the future, that this matter is decided once and for all by the Court of Final Appeal. Therefore, I consider that this division should not depart from the decision which has so recently been given by the other division and should maintain it.

7. In relation to the question of whether leave to appeal should be given under section 22(1)(b), the difficulty appears to me to be that the decision of Suffiad J, which was upheld by this court, was a decision on the facts and that there are concurrent decisions of fact in the two courts. In those circumstances, the scope for appeal is limited and it is a matter which in my view should be decided by the Court of Final Appeal as to whether they wish to take the case up.

8. Mr Yau has raised a further point, which is a point of law, which is contained in an application to amend the application for leave to appeal. In my view, the point which is sought to be raised is not precise and specific enough and I would not, myself, be disposed to give leave under the discretionary ground to argue that point, particularly in the way it is at present framed. I would therefore dismiss this application for leave to appeal.

Hon Le Pichon JA:

I agree.

Hon Yuen JA:

I agree.