ANTHONY WEE SOON KIM v. UBS AG HONG KONG BRANCH

cacv 96/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 96 of 2006

(on appeal from HCA NO. 2005 of 2004)

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J U D G M E N T

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Hon Rogers VP:

1.      This is an application for leave to appeal to the Court of Final Appeal from a judgment of this court given on 5 November 2007, whereby this court upheld the judgment in the court below striking out the statement of claim and dismissing the action on the basis, very simply, that the matters sought to be litigated in the action should have been litigated in the proceedings which had been taken in Singapore.

2.      On this application, Mr Wee, who has appeared for himself, has taken two points.  He seeks to rely, first of all, on section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, but that relates to decisions of this court which are final decisions and not interlocutory decisions.  As was pointed out to Mr Wee in the course of argument, this court naturally had considered the matter as to whether the application before it was in respect of an interlocutory matter or in respect of a final matter.  This court was of the very firm conclusion, and it would have raised the matter with the parties if it were not, that this was an interlocutory matter.  This court so concluded it was unnecessary to express it in the judgment of 5 November.  Indeed, there had been no question raised in the course of argument on 31 October as to the point.  If there is any doubt about the matter, I say once and for all, that this was an interlocutory application.  It was a matter of strike-out under Order 18 and that is an interlocutory matter.  On that basis, the provisions of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance cannot apply.

3.      The argument then turned to whether there were matters of great general or public importance upon which this court should grant leave under section 22(1)(b) of the Ordinance.

4.      I acknowledge that the Plaintiff has strongly held views that the Defendant had acted wrongly without instructions to the considerable detriment of the Plaintiff and, indeed, it was submitted that the Defendant has acted fraudulently.  It is the primary submission, as I understand it, of the Plaintiff that because the officers of a bank such as the Defendant have acted fraudulently that is a matter of great general or public importance which the Plaintiff should be allowed to ventilate in the Court of Final Appeal.

5.      Having considered the matters that were put forward when the matter first came before this court, I am far from convinced that there is any merit in the argument that the officers of the bank have acted wrongly.  But even if that were so, the fact that a fraud has been committed does not constitute a matter of great general or public importance.  Clearly it is a matter of importance to the parties but that is quite a separate matter.

6.      Underlying the whole basis, though, of the Plaintiff’s claim is the proposition that the Defendant’s branch in Singapore is a different legal entity from the Defendant’s branch in Hong Kong.  The matter that was referred to by the judge below in paragraph 18 of his judgment and in our judgment was simply that the Defendant was the same Defendant in Singapore and here.  It was said that this would give rise to a possibility that a party could sue the Defendant in, say, New York, London or Hong Kong on the basis of acts which had been committed in Singapore.  That is quite a separate proposition and it depends upon the rules of the court and the laws of the country relating to whether or not the court would be prepared to entertain actions in respect of matters arising abroad.  This is quite different from the question of whether or not the defendant is one entity or two entities.

7.      On that basis, therefore, I regret I do not see any grounds upon which this court should grant leave to appeal to the Court of Final Appeal and this application therefore falls to be dismissed.

Hon Le Pichon JA:

8.      I agree.

(Submissions by counsel on costs)

9.      Costs in the application.