SHUM KAM FAI v. LAM CHI WAI AND ANOTHER

CACV 3376/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3376 OF 2001

(ON APPEAL FROM HCPI 136/2000)

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J U D G M E N T

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Seagroatt J (giving the judgment of the Court):

1. This is an application for leave to appeal to the Court of Final Appeal against the decision of this court handed down on 28 June of this year.

2. The Notice of the Motion is dated 6 September. Although the application is therefore out of time by about 5 weeks, time did not run, by reason of an application for legal aid and the statutory provisions which follow. Legal aid has, in fact, been refused.

3. The decision of this court was to reduce the award made by Master C B Chan under two heads of claim by over $3 million. The Notice of Appeal gives as the ground for seeking leave that by virtue of s. 22(1)(A) of the Hong Kong Court of Final Appeal Ordinance Cap. 484, there is entitlement as of right, since the matter in dispute involves damages in excess of $1 million.

4. Miss Julia Lau, in her helpful skeleton argument for the Respondents, relies upon the decision of the Court of Final Appeal in Ching Lai Kwan v Nam Fung Textiles Limited 1997-1998, 1 HKCFAR page 204. That decision concerned initially an appeal by a plaintiff against an award of $127,000.00, claiming an award of unliquidated damages running into millions of dollars.

5. The Court of Appeal dismissed her appeal and her application for leave to appeal to the Court of Final Appeal. The Court of Final Appeal held that the appeal as of right, provided for by s. 22(1)(A) of the Ordinance, did not include an award of unliquidated damages. Where it could be said as a matter of utmost probability or even virtual certainty, the damages ultimately awarded would be in excess of $1 million, then, as a general rule, discretion under s. 22(1)(A) would be exercised to grant leave.

6. The fact that there was by the Master an award under one head of damage in excess of $1 million does not avail the Applicant. It remains a matter of unliquidated damages. Even though there has been fixed an assessment, by opinion or estimate, it does not become a head of liquidated damages simply because there has been an assessment in a sum in excess of $1 million.

7. Mr Justice Bokhary, at page 207E-F of the decision of the Court of Final Appeal referred to, said

"What if the award to the Applicant was reopened; every element of loss put under the appropriate head; and every head of damage reassessed; are there reasonable prospects of the applicant then getting more than [he] has been given so far?"

We do not consider in any event that there is any such reasonable prospect and accordingly, we dismiss the application.