JOHN BAPTIST WU v. TSOI KAY AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 3
(Civil)

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J U D G M E N T

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Nazareth Atg CJHC:

1. On 23 July 1998 we dismissed the applicant's appeal. He now appears in person to seek leave to appeal to the Court of Final Appeal. What he asked of this Court in his notice of appeal were declarations, an injunction, dismissal of the defendant's counterclaim, costs, and, what is significant, that the defendant be ordered to account to the plaintiff for all profits made by them in their dealings with some eight specified customers. There was a prayer in the alternative for damages for breach of agreement to be assessed.

2. He first appeared before us on 16 December 1998. On that occasion his application was so ill-prepared and the material so incomplete, that we were not able to deal with his application and had to give him time to prepare it properly.

3. He has now produced his second affidavit and a very bulky exhibit. These explain his case in great factual detail. However, to obtain leave, he has first to meet the requirements of s.22(1)(a) of the Hong Kong Court of Final Appeal Ordinance. This provides that:

"(1) An appeal shall lie to the Court in any civil cause or matter -

(a) as of right, from any final judgment of the Court of Appeal, 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;"

It can be seen from what I have already said that the closest that the applicant gets to this is his claim for an account for all the profits made by the defendants and the alternative claim for damages. The net result of that is that there is no claim for liquidated damages of $1m or more. In relation to unliquidated damages, the courts have approached the matter upon the basis of the dictum in the Privy Council in Zuliani v Veira [1994]1 WLR 1149 with which the Court of Final Appeal agreed in Cheng Lai Kwan v Nan Fung Textiles Ltd FAMV13 of 1998. It is plain from those judgments that what the court has to be satisfied before it can exercise its discretion (under s.22(1)(b)) to grant leave is that it should be able to say as a matter of the utmost probability or of virtual certainty that the damages ultimately awarded would reach $1m.

4. For myself, I have no difficulty whatsoever in immediately stating that I am nowhere near satisfied to that degree of probability that the damages ultimately awarded will exceed $1m.

5. In those circumstances the conclusion follows that the applicant is not entitled to automatic leave as of right under paragraph (a).

6. Turning to paragraph (b) of s.22(1), this provides for leave:

"(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal 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."

The applicant has not in his papers identified or stated any question. Before us today, when asked to identify such a question, he has stated that the matter is one of great importance to him personally which is nothing to the point. He also stated that it is a question of a dispute on a matter of agreement. That likewise does not identify a question of great general or public importance; nor have I been able to identify any such question. Accordingly, there is nothing upon the discretion of this Court could be exercised. Leave, therefore, could not be granted under paragraph (b).

7. I would accordingly refuse leave.

8. I have to say in hindsight that perhaps the application should have been dismissed on the first occasion that the applicant came before us. However that may be, the matter would now weigh only in costs, and, as to that, the defendants appear in person.

Mortimer V-P:

9. I agree.

10. I am satisfied that this appeal does not lie as of right under s.22(1)(a). The claim is for an account and not in my judgment, for a liquidated demand - insofar as that is an important consideration. I am aware and have considered the definition of liquidated demand as it appears in paragraph 6.2.5 of the Supreme Court Practice 1999. I am not satisfied to the necessary degree of probability that the damages, if awarded, would exceed $1m.

11. As to the exercise of discretion in other respects, I agree entirely with the reasons which have fallen from the Acting Chief Judge of the High Court.

Liu JA:

12. I agree. I only wish to say a word or two on s. 22(1)(a). Whilst it is debatable that a liquidated demand would include one capable of being ascertained as a mere matter of arithmetic, in this case, the respondents (defendants) submit a sheet of calculations in which the claim of the applicant (plaintiff) is said to be slightly over $1/2 million. It is further said that even on the calculations of the applicant (plaintiff), it would merely be in the region of $900,000. The applicant (plaintiff) has not disputed this state of affair presented to us today. In fact, he has not responded to it.