YEN WING CHOI AND OTHERS v. MATCH POWER INVESTMENT LTD

CACV 5/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 5 OF 2010

(ON APPEAL FROM HCA NO. 1829 OF 2005)

________________________

________________________

J U D G M E N T

________________________

Hon Rogers VP:

1.  This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 12 November of this year. The application is put under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on two bases: first, it is said that there is a matter of great general or public importance; and secondly, it is said that the leave should be given under the “or otherwise” ground. I see no basis for giving leave on either ground.

2.  The appeal to this court was an appeal in relation to a construction of a document, a fairly simple document, and the kernel of this court’s judgment is in paragraph 29 of the judgment where Le Pichon JA said:

“In my view, the judge correctly construed the meaning of the settlement agreement and its effect, and I see no basis for impugning the reasons she gave for her conclusion.”

With that sentiment, the remainder of the court agreed.

3.  The points which are sought to be raised are entirely peripheral and minor and they do not, in my view, constitute matters of great general or public importance.  The first one is,

“Does the fact that there had been no negotiations of any kind between the parties form part of the relevant factual matrix for the purpose of construing a contract?”

and secondly,

“Alternatively, in the case where the issue is whether an agreement has the effect of settling an outstanding claim by one party against the other, and the parties were aware that such claim existed at the time of signing of the agreement, does the fact that there had been no negotiations of any kind relating to that claim form part of the relevant factual matrix for the purpose of construing the said agreement?”

4.  In my view, these points are entirely peripheral to the main point, which was the simple construction of the agreement.

5.  The point sought to be made on the “or otherwise” ground relates to an observation by this court, which was made right at the end of the judgment in the form of a post-script, where this court indicated that they considered that the defendant had behaved badly.

6.  That is not a matter upon which leave would be given under the “or otherwise” ground, and in any event, as Mr Mok has said in the course of argument, this court usually does not give leave under the “or otherwise” ground and leaves the matter to the Court of Final Appeal to decide, if an application is made on that basis.

7.  I would, therefore, refuse leave to appeal.

Hon Le Pichon JA:

8.  I agree.

Hon Lunn J:

9.  I too agree.