MAK YIN CHEUNG v. CHAN HUNG WAI AND OTHERS

CACV 112/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 1998

(ON APPEAL FROM HCA NO. A6507 OF 1995)

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J U D G M E N T

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Liu, JA:

1. This is a libel action. The applicant lost the appeal but lost it by a majority. The applicant seeks leave to appeal to the Court of Final Appeal under s. 22 of the Hong Kong Court of Final Appeal Ordinance. S. 22 reads:

"22. Civil appeals

(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; and

(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.

(2) The Governor in Council may be order published in the Gazette amend subsection (1) to vary the amounts specified."

2. Libel cases do not espouse any high award close to $1 m. It is virtually conceded that the $1 m limit would not be reached in the instant case. The applicant, therefore, cannot invoke s. 22(1)(a). Paragraph (a) gives no discretion to the court. If libel cases had been regarded as matters that would require to be considered on a wholly different basis, the legislature could easily have made an exception of them. But it did not and s. 22(1)(a) has a universal application.

3. Turning to s. 22(1)(b), there exists no question of great general or public importance. Nothing was unusual. This is a case in which settled principles were applied to found facts.

4. Much is sought to be made of the words "or otherwise" in s. 22(1)(b). Evidently, a global consideration has to be given to the case for the exercise of discretion under this relatively broad term "or otherwise". We have been led through cases such as Michael Eric Alexander Bos Mak v. Osvaldo Patrizzi, Civil Appeal No. 103 of 1991, judgment of which was given on 22 November 1991, which dealt with leave granted under "or otherwise" for a decision which was demonstrably wrong; Hui Shiu Wing v. Cheung Yuk Lin, [1968] HKLR 176 at p. 188 where Blair-Kerr, J referred to exceptional circumstances for the application of the very same term; Hui Shiu Wing v. Cheung Yuk Lin and Loretta Cheung, [1968] 1 AC 131 at p. 135F, in which the reference made by the Judicial Committee to "sufficient reason" did not seem, of itself, to have expanded the ambit of "or otherwise".

5. Bearing in mind the guidance proffered, I am not persuaded that this case falls within the parameter of "or otherwise" canvassed in the decisions and for these reasons, I would refuse the application.

Cheung, J :

6. For my part, I would grant leave to appeal. The matter comes within the ambit of the "or otherwise" provision of s.22(1)(b).

7. In view of the established range of damages in libel cases, one will rarely be able to establish a case under s.22(1)(a). Furthermore, a litigant in libel cases will rarely be able to satisfy the high threshold under the requirement of great general or public importance. However, the result of the decision is obviously of importance to the parties in relation to the issue of reputation of the Plaintiff and the finding of malice against the Defendants.

8. In my view, in considering previous authorities on the meaning of the provision of "or otherwise", one does not need to go beyond Archer v The Hong Kong Channel Limited [1998] 1 HKLRD 829 where one can say respectfully the criterion is based on the justice of the case. In this case, justice requires the Defendants to be given the right to appeal where the essential elements of the libel complained of and the question of malice had in fact not been addressed at the trial, and where, as I said in my decision, the Court of Appeal was not in a position to make a fresh finding of fact on the evidence.

Pang, J:

9. For the reasons given by Liu JA, I agree that the application should be dismissed.

Liu, JA:

10. By a majority, the application is therefore dismissed with costs.