NG YAT CHI v. MAX SHARE LTD AND ANOTHER

CACV 306/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. CACV 306 OF 2002

(ON APPEAL FROM HCSD 22 OF 2002)

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J U D G M E N T

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

1. On 10 September 2003, we dismissed two appeals lodged by the applicant-Ng Yat Chi.

2. The 1st appeal (CACV 306 of 2002) related to an application to set aside a statutory demand served on the applicant for about $1.4 million, being part of the legal costs arising out of HCCW 321 of 1996 and the consequential appeals. Deputy Judge Woolley dismissed the application and we confirmed his decision.

3. The 2nd appeal (CACV 414 of 2002-an appeal from HCA 2039 of 2002) related to 49% of the shareholdings in Max Share Ltd.

4. In HCA 2039 of 2002, the applicant sought to restore the original decision of Yuen J (as she then was) in HCCW 321 of 1996 after the Court of Appeal over-ruled her decision and the Appeal Committee of the Court of Final Appeal refused leave to appeal against the decision of the Court of Appeal.

5. The applicant suggested that the decisions of the Court of Appeal and of the Appeal Committee were the result of fraud/cheating and were therefore null and void.

6. Deputy Judge Carlson struck out the applicant's claim on the basis that it was an abuse of the process of the court. He also made a Grepe v Loam Order. We also confirmed Deputy Judge Carlson's decision.

7. The background of the cases had been set out in sufficient details in our earlier judgment and we do not repeat it here.

8. The applicant now seeks leave (in both cases) to appeal to the Court of Final Appeal.

9. The applicant suggests that the amounts involved in the 1st and 2nd appeals are respectively $1.43 million and $6.7 million and hence the appeals lie as of right. The $6.7 million is said to be the applicant's liability for the total costs in connection with HCCW 321 of 1996.

10. The applicant further suggests that the questions involved in the appeals are of great general or public importance.

11. Section 22 of the Hong Kong Court of Final Appeal Ordinance (the Ordinance) provides:

(1)	An appeal shall lie to the Court-
(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 $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;
(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;

12. The applicant has not formulated the questions involved in the appeals. We also cannot identify any question involved in either appeal to submit to the Court of Final Appeal, let alone one of great general or public importance.

13. In deciding if a judgment is final for the purpose of section 22 of the Ordinance, the test is "whether the order made upon the application would, whether it fails or succeeds, determine the whole action". (See B + B Construction Ltd v Sun Alliance & Another [2000] 2 HKC 295)

14. The dismissal of the application to set aside a statutory demand could not be "final" within s.22 of the Ordinance as the debtor (the applicant) would still be entitled to show cause to challenge the bankruptcy petition against him.

15. The dismissal of the 1st appeal (albeit concerning $1.4 million) is not "final". There is no question of great general or public importance or otherwise which ought to be submitted to the Court.

16. There is no basis upon which we can grant leave to appeal against our judgment in the 1st appeal. The application for leave to appeal in respect of CACV 306 of 2002 is refused.

17. The decision to strike out HCA 2039 of 2002 together with a Grepe v Loam Order would indeed determine the whole action from the applicant's point of view. The applicant could take the matter no further. But that is not the test.

18. An order is a final judgment only if it is made upon an application, which would determine the whole action, whether it fails or succeeds (emphasis added). The application to strike out would only determine the whole action if it succeeds and not if it fails and therefore the order made in pursuant to such an application is not a final judgment.

19. We share a degree of uneasiness that strict application of the so-called 'application test' produces a result that is not attractive and may be perceived as unfair - a strike out followed by imposition of a Grepe v Loam order resonates 'finality'- but in this our course must be governed by the decision of the Court of Final Appeal in B + B Construction Ltd (supra). In certain cases, of course, the court can further rely upon the "or otherwise" provision in considering whether to grant leave, although we venture to suggest that this is not one of those cases in which it would be appropriate to engage that provision.

20. The applicant also suggests that HCA 2039 of 2002 involves over $6.6 million. There was no claim for over $6.6 million in the prayers of the statement of claim. The reference to the $6.6 million costs was made as part of the background facts leading to the applicant's purported claim.

21. In any event, in considering if the matter in dispute on the appeal amounts to or is of the value of $1 million or more, the amount of legal costs is not a relevant factor.

22. In the statement of claim in HCA 2039 of 2002, the applicant did not specify the value of the 49% shareholdings in Max Share Ltd.

23. The court had earlier found that at the material time, Max Share Ltd. had a capital deficiency of about $172 million and the applicant's shares were valueless.

24. There is therefore no basis for suggesting that the dispute in CACV 414 of 2002 (an appeal from HCA 2039 of 2002) amounts to $1 million or more. There is no automatic right of appeal to the Court of Final Appeal on such basis even if the order to strike out the applicant's claim constitutes a final judgment.

25. We are not persuaded that CACV 414 of 2002 involves any question of great general or public importance (in fact none has been put forward). We are also not persuaded that there is any "otherwise" question which justifies the granting of leave. As we had observed in our earlier judgment, the applicant's case had no merit whatsoever.

26. The application for leave to appeal in respect of CACV 414 of 2002 is also refused. We also make an order nisi that the applicant is to pay the costs of the application to be taxed if not agreed.