SHUM YIP-UTC (HONG KONG) CO. LTD. v. MASTER CO. (a firm)

CACV 26/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 26 OF 1999

(ON APPEAL FROM HCA 7560/1990)

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J U D G M E N T

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Godfrey, J.A. :

1. This is, in substance, an application by the defendant in the action below (a sole trader) for an order extending the period within which the defendant was authorised to apply for leave to appeal to the Court of Final Appeal from an order of this court made on 25 June 1999 (see section 24(5) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484) and for such leave to appeal if the period is accordingly so extended.

2. By its order made on 25 June 1999, this court allowed the defendant's counterclaim, which had been dismissed by the judge below, and, in substance, ordered an inquiry as to damages in the defendant's favour. That order was based on a finding of fact by the judge that the contract between the plaintiff and the defendant out of which the dispute arose related to 62,160 pieces of man's jackets, although it is the defendant's case that the contract related to a substantially larger number of pieces than that. The defendant is aggrieved because this court, although allowing the defendant's counterclaim, upheld the judge's finding of fact as to the number of pieces. In the result, there are concurrent findings of fact, in the court below, and in this court, as to the number of pieces. In those circumstances, it would be unusual (to put into its lowest) for the Court of Final Appeal to interfere with the conclusions of the court below and of this court.

3. The question whether this court ought to extend the period within which the applicant was authorised to apply for leave to appeal to the Court of Final Appeal is a question which we have to answer in the exercise of our discretion. Although the defendant has offered reasons which render it understandable that he failed to apply for leave to appeal to the Court of Final Appeal within the prescribed period (it is clear that he misunderstood the true position) I would, for my part, be disinclined to grant an extension of time in this case. The case is already very stale, as pointed out both by the judge and by this court, in that the events which gave rise to the proceedings took place over a decade ago. Furthermore, the fact that there are concurrent findings of fact in the court below and in this court militates against us sending the case to the Court of Final Appeal, notwithstanding that, if we were to extend the period, the defendant would be entitled to appeal as of right, since the matter in dispute on the appeal amounts to, or is of the value of, more than $1 m (see section 22(1) of the Ordinance).

4. It is, of course, always open to the Court of Final Appeal itself, if it is persuaded that it ought to entertain an appeal against concurrent findings of fact in the court below and this court, to extend an appellant's time for appealing and then proceed, in due course, to hear the appeal.

5. In those circumstances, I confine myself to saying that, in my judgment, we ought to refuse this application, leaving the defendant to take the matter further, if he wishes, before the Court of Final Appeal itself.

Rogers, J.A. :

6. I agree that the time for appealing to the Court of Final Appeal and the lodging of the Notice of Motion should not be extended by this Court for the reasons which have been given by Godfrey, J.A.

7. I would say, however, having listened to the Defendant, that the points which he seeks to raise were certainly raised in this Court and, unless I am mistaken, in the Court below. I am satisfied that there are concurrent findings of fact on the matters which it is sought to raise.

Gall, J. :

8. I agree with the judgments delivered by Godfrey and Rogers, J.J.A. and I have nothing further to add.