TANG KAP WING TSO v. TANG LEUK TSO AND ANOTHER

CACV 196/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 196 OF 2010

(ON APPEAL FROM HCA NO. 1944 OF 2007)

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REASONS FORJUDGMENT

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Hon Yuen JA (giving the Reasons for Judgment of the Court):

1.  This is an application for leave to appeal to the Court of Final Appeal against the judgment of this court given on 6 July 2011 dismissing the Plaintiff’s appeal against the judgment of Chung J given on 25 June 2010. 

2.  The learned judge had dismissed Madam Liu’s claims, as manager of the Tang Kap Wing Tso (“KWT”), against the 1^st Defendant, who are managers of the Tang Leuk Tso (“LT”). 

3.  At the hearing of the appeal, the Plaintiff was represented by leading counsel, but Madam Liu now appears in person.  She has provided a bundle of documents which we have read de bene esse.  Some of these documents comprised of fresh evidence which, on the authorities, are not admissible as they were not adduced before the judge, nor before this Court at the hearing of the appeal, but as that is not material to the determination of the issue before us, I shall say no more.

4.  Essentially Madam Liu’s case was that even though her co-manager and son Tang Tim Chue (“Tang Jr”) had signed a Deed in 2003 selling the KWT’s 13 shares in LT to his father Tang Sum On (“Tang Sr”) and waived the KWT’s claim to 10 other disputed shares, those acts were not binding on the KWT because (1) she had not signed it, and/or (2) the sale/waiver did not have the consent of all the other members of the KWT.  The members of the KWT comprised only Tang Jr and his 3 sons.

5.  In relation to (1), we accepted the trial judge’s findings of fact that Madam Liu had authorized or acquiesced in her co-manager Tang Jr’s actions (see paras. 22-25 of our judgment of 6 July 2011).

6.  In relation to (2), we held, following the Court of Final Appeal’s judgment in Re Lau Wai Chau (2000) 3 HKCFAR 98, that Tso property may be alienated if the heads of all the fongs unanimously agree.  In our case, there was only 1 fong, headed by Tang Jr, and it was he who signed the Deed selling the property.  The KWT’s property could therefore be validly alienated.  In any event there was no evidence before the trial judge or this Court that any of the other members of his fong had dissented at the time of the alienation in 2003 (see paras. 30-31 of our judgment).  

7.  Regarding the present application, Madam Liu had not indicated whether she was seeking leave to appeal to the Court of Final Appeal under s.22(1)(a) or under s.22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 (“HKCFAO”).       

8.  Assuming she was seeking leave to appeal under s.22(1)(a), we noted that the claim in the Re-Amended Statement of Claim was for a sum of “around $600,000” (para. 7) and a fixed sum of $1,150,000 (para. 9).  In view of the liquidated nature of the latter sum and the fact that our judgment is a final one, the requirements of s.22(1)(a) are satisfied.  The Respondents having indicated that they would instruct legal representatives at the Court of Final Appeal, we granted leave to appeal on condition that the Appellant should make payment into court within 3 months of 16 December 2011 of the sum of $200,000 under the provisions of s.25 HKCFAO.    

9.  We did not grant leave under s.22(1)(b) as no questions of great general or public importance are involved in the appeal, and it is clear from the discussion of the merits of the case above, that there was no reason to grant leave on the “or otherwise” limb either.

10.  We also ordered that the costs of this application for leave are to be costs in the appeal in the Court of Final Appeal.