CHU KONG HIGHWAY ENGINEERING CO. LTD. v. WONG CHEUNG SUM

CACV 264/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 1999

(ON APPEAL FROM HCA NO. 2335 OF 1999)

______________

_______________

J U D G M E N T

_______________

Keith JA (giving the judgment of the Court):

1. Although five questions have been identified in the Notice of Application for Leave to Appeal which are said to justify the submission of this appeal to the Court of Final Appeal, we think that they boil down to two.

2. In the present case, the Court of Appeal substituted, for the finding of the judge below that the Defendant should have unconditional leave to defend the action, an order that there be summary judgment for the Plaintiff. Accordingly, the only question of procedure which arises, and which might be said to justify the grant of leave to appeal to the Court of Final Appeal, is whether it is open for an appellate court to take that course. That is, of course, a question of great general and public importance, but the answer to it in our opinion is so obvious that it ought not to be submitted to the Court of Final Appeal for decision. If the Rules provide for an unrestricted right of appeal from an order giving a defendant unconditional leave to defend, there is little room for denying an appellant the right to contend that summary judgment should have been given.

3. Nor is this an appropriate case for the Court of Final Appeal to be asked to identify the true parameters of the law of duress. That is because the Court of Appeal in the present case held that, although it was arguable on the facts asserted by the Defendant that the defence of duress had been made out, the facts asserted by the Defendant were not believable.

4. For these reasons, therefore, this application for leave to appeal to the Court of Final Appeal must be dismissed.