CHAN KONG v. CHAN LI CHAI MEDICAL FACTORY (HONG KONG) LTD AND OTHERS

CACV 128/2010 &
CACV 237/2010
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 128 and 237 OF 2010

(ON APPEAL FROM HCB NO 690 OF 2009)

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J U D G M E N T

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Hon Lam JA (giving the judgment of the Court):

1. By 2 notices of motion dated 20 and 28 November 2012 [“the Notices”] respectively, the Appellant seeks leave to appeal against our judgment of 1 November 2012 [“the November judgment”] dismissing his appeals in these two appeals. The subject matters of the appeals are, as set out in the November judgment,

(a)  in CACV 128 of 2010, a bankruptcy order made against the Appellant on 14 May 2010 [“the Bankruptcy Order”];

(b)  in CACV 237 of 2010, the refusal of stay of the bankruptcy proceedings pending the determination of CACV 128.

2. The legal requirements which the Appellant must satisfy before leave may be granted for an appeal to be brought before the Court of Final Appeal are set out in s 22 of the Hong Kong Court of Final Appeal Ordinance Cap 484. In the present context, it is only necessary to refer to s 22(1)(a) and (b):

“(1) An appeal shall lie to the Court—

(Amended 21 of 2001 s. 52)

(a) as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1000000 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 $1000000 or more; (Amended 21 of 2001 s. 52)

(b)  at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, as the case may be, the question 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; and (Amended 21 of 2001 s. 52) …”

3. Plainly the case does not come within the scope of s22(1)(a). The subject matters of these appeals are not final judgments concerning a liquidated claim of over $1 million.  Nor do they involve a claim or question to or respecting property or civil right amounting to at least $1 million in the sense as laid down in China Field v Appeal Tribunal (Buildings) (No 1) 12 HKCFAR 68, WLK v TMC (No 1) [2009] 12 HKCFAR 473 and Chinachem Charitable Foundation v Chan Chun Chuen [2011] 6 HKC 273.  The Appellant wrongly identified his claims in HCA 4104 of 2001 or HCA 1186 of 2009 as the subject matters of these appeal in his Notice in CACV 237 of 2010.  As explained in the November judgment, the Bankruptcy Order was made due to his failure to discharge his liabilities under a costs order made in CACV 161 of 2006 by reason of an adjournment of that appeal granted on his request.    

4. Turning to s22(1)(b), the Appellant has to demonstrate that the question 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 of Final Appeal.  The Appellant did not rely on this limb in the Notices. Further, the questions identified by him in the Notices are not questions of great general or public importance.

5. Nor are we satisfied that leave should be granted on the “otherwise” limb, which in any event is generally a matter for the Court of Final Appeal.

6. On the contrary, we do not discern any reasonably arguable grounds of appeal in the Appellant’s submissions.  Therefore, even assuming the Appellant can satisfy the requirements in s22(1)(b), we would not exercise the discretion to grant leave.

7. The applications of the Appellant are dismissed.