LSW v. LMYM

HCMP 1041/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1041 OF 2008

(ON AN INTENDED APPEAL FROM FCMC 11418/2004)

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J U D G M E N T

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Hon A Cheung J (giving the judgment of the Court):

1.  On 7 July 2008, this Court handed down a judgment to deal with the applicant’s application for leave to appeal to the Court of Appeal from FCMC 11418/2004.  The Court dismissed the application.

2.  On 21 August 2008, this Court handed down a further judgment to strike out, in the exercise of the Court’s inherent jurisdiction to prevent abuse of the process of the Court, the applicant’s appeal in CACV 43/2008, and to impose restricted proceedings and restricted application orders against the applicant (“the restrictive orders”).

3.  On 4 September 2008, pursuant to the restrictive orders, Tang V-P refused to grant leave to the applicant to apply to set aside the further judgment and the orders made therein.

4.  The applicant now seeks leave to appeal to the Court of Final Appeal from these decisions. 

5.  The facts have been fully set out in our two judgments.  We will not repeat them here.

6.  Although many materials have been filed by the applicant, the grounds of appeal are obscure.

7.  But even more importantly, the present application simply does not fall within s 22(1) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) which governs the grant of leave to appeal.

8.  First, our decision not to give leave to appeal is not a ‘judgment’ within the meaning of s 22(1)(a) and (b).  No appeal therefore lies to the Court of Final Appeal: HLF v MTC [2004] 3 HKLRD 241; 李秀英v中國銀行(香港)有限公司 CACV 5/2008 (23 October 2008).  Likewise, a refusal to grant leave under a restrictive order is not a ‘judgment’ within the meaning of that section and there can be no appeal from such refusal to the Court of Final Appeal.

9.  Secondly, s 22(1)(a) is inapplicable in any event because we are not dealing with a final judgment, nor is the value in dispute of $1,000,000 or more.

10.  Nor can we discern any question which, by reason of its general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision (s 22(1)(b)).  The subject decisions only involved applying well-established principles to the facts of the present case.  No question of great general or public importance was engaged.

11.  The application for leave to appeal to the Court of Final Appeal is therefore dismissed with no order as to costs.

12.  In order to protect the Court of Appeal from being vexed by any future applications for leave to appeal to the Court of Final Appeal from the designated judge’s refusals to grant leave under the restrictive orders, we further order and direct that no such application shall be made without the prior leave of the designated judge, and for such purposes paras 3 to 8 of this Court’s Order dated 21 August 2008 be and are hereby extended to cover all such applications before the Court of Appeal for leave to appeal to the Court of Final Appeal.