POON HAU KEI v. HSIN CHONG CONSTRUCTION CO LTD AND OTHERS

CACV 167/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO.167 OF 2002

(ON APPEAL FROM HCPI 1333 OF 1998)

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REASONS FOR DECISION

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Hon Rogers VP:

1. I agree with the judgment of Ma JA.

Hon Le Pichon JA:

2. I agree with the judgment of Ma JA.

Hon Ma JA:

3. Following our judgment handed down on 30 January 2003, the Plaintiff has applied for leave to appeal to the Court of Final Appeal. At the hearing of this application on12 June 2003, after hearing submissions from Mr Ruy Barretto SC, we dismissed the application with costs and said that we would hand down our Reasons for Decision later.

4. The Application was made under both section 22(1)(a) and (b) of the Hong Kong Court of Final Appeal Ordinance Cap. 484.

5. As far as section 22(1)(a) is concerned, the monetary value of what is in dispute relates to a claim for unliquidated damages. Although the judge at First Instance assessed and awarded damages in excess of $1 million, this was still an award of unliquidated damages. Accordingly, the provisions of section 22(1)(a) do not apply:- see Cheng Lai Kwan v Nan Fung Textiles Limited (1997-98) 1 HKCFAR 204; Shum Kam Fai v Lam Chi Wai, unreported, FAMV 38/2002, 16 December 2002, Court of Final Appeal.

6. As for the application made under section 22(1)(b), it is said that there are points of great general or public importance involved in the appeal to the Court of Final Appeal. With respect, none of the questions identified in the Notice of Motion for leave and as articulated before us, falls within this category at all. The basic theme underlying our judgment in the appeal was that in the circumstances of the case, the 1st Defendant had not been given a fair opportunity to address and deal with the issue of its negligence on the factual basis as found by the learned judge below (a basis that was completely contrary to the factual basis maintained by the Plaintiff throughout the trial). This was notwithstanding the fact that, as Mr Barretto continually reminded us, this was the factual scenario that the 1st Defendant had pleaded to be the case in its defence.