T v. SHIU WAI TUEN

CACV 255/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 255 OF 2010

(ON APPEAL FROM HCA NO. 2229 OF 2007)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Tang VP:

1.  I have had the advantage of reading Kwan JA’s judgment in draft. I am in complete agreement and have nothing to add.

Hon Kwan JA:

2.  We have before us two applications by the plaintiff. In the Notice of Motion filed on 22 August 2011, she seeks leave to appeal our judgment to the Court of Final Appeal. In her summons filed on 1 September 2011, she seeks a stay of execution of the judgment until after the determination of the appeal to the Court of Final Appeal, a continuation of the Mareva injunction granted to her on 26 October 2007 and of the lis pendens she registered against a property of the defendant until after the determination of that appeal. We have made orders at the end of the hearing and these are the reasons for judgment.

3.  The facts giving rise to the claim for repayment of a debt of $17.8 million and the counterclaim for damages for malicious prosecution and the findings made by the court appeared in our judgment of 25 July 2011 and would not be repeated here.

4.  I would first deal with the application for leave to appeal, which is against the whole of the judgment. The plaintiff relies on both sections 22(1)(a) and 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

Leave to appeal under section 22(1)(a)

5.  In respect of her claim for repayment of a debt of $17.8 million, which was dismissed by Deputy Judge Carlson and the dismissal was upheld by this court, the plaintiff relies on that part of section 22(1)(a) which provides for a right to appeal as of right from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1 million or more.

6.  There is no doubt that the plaintiff’s claim for repayment of a debt is a liquidated claim. An appeal from that part of the judgment lies to the Court of Final Appeal as of right. The submission of the defendant’s counsel that this court would need to ascertain the plaintiff’s prospects of success to filter out unmeritorious appeals is misconceived. This court is obliged to grant leave to appeal in respect of the plaintiff’s claim for repayment of a debt of $17.8 million, regardless of the merits. We have granted leave for that part of the judgment, on condition that the plaintiff is to provide security for the due prosecution of the appeal and the payment of all such costs as may become payable to the defendant by paying into court $400,000 within 42 days hereof, with an order that the costs of the Notice of Motion be in the cause of the appeal.

Leave to appeal under section 22(1)(b)

7.  It is contended by the plaintiff that in respect of (1) her claim for repayment of debt; (2) the issue of liability for malicious prosecution; and (3) the quantum of damages for malicious prosecution, her intended appeal of those parts of the judgment would raise questions of great general or public importance and leave to appeal should be granted in the discretion of the court.

8.  Four questions were framed in respect of (1) in paragraph 14 of the Notice of Motion. It is not necessary to set out these questions verbatim. Suffice it to say they are not questions of law properly framed, they are specific to the particular fact situation here, and there is apparently no merit in the attack on paragraphs 17, 29 and 30 of the judgment of this court. 

9.  The questions in respect of (2) were set out in paragraph 16 of the Notice of Motion. Again, they do not appear to me to be proper questions of law for the Court of Final Appeal. As far as I understand the submission of counsel for the plaintiff and the cases he cited, he has not submitted there is any dispute of the law relating to the necessary conditions to found liability for malicious prosecution. What he appeared to argue is the application of the law to the facts here. The questions framed by counsel are fact sensitive, and insofar as it is contended that the police had disbelieved the defendant’s statement given under caution and that had triggered or contributed to the laying of the charge against him, this contention is not supported by any finding of the court below. As for the SMS text messages and posters relied on by the plaintiff to make the point that her allegation of blackmail and intimidation was not a “one on one” situation, the text messages and posters were in the latter part of 2007 (see paragraphs 27 and 28 of the judgment of Deputy Judge Carlson), whereas the alleged acts of blackmail, extortion and intimidation were committed between June 2006 and August 2007, in private communications between the plaintiff and the defendant.

10.  As for the quantum of damages for malicious prosecution, notwithstanding the dearth of authorities in Hong Kong, it does not appear to us this is an appropriate case to grant leave to appeal on this issue.

11.  It has not been demonstrated on what grounds this court should grant leave on the “or otherwise” limb in section 22(1)(b).

12.  For the above reasons, we refused to grant leave to appeal under section 22(1)(b) on any of the questions framed in paragraphs 14, 16 and 17 the Notice of Motion.

Stay of execution pending appeal

13.  As held by the majority of the Court of Appeal in Whale View Investment Ltd. v. Kensland Realty Ltd. & Ors. [2001] 3 HKC 15 at 21A to C, E to 22F, the onus is on an applicant to demonstrate very exceptional circumstances for a stay of execution to be granted pending an appeal to the Court of Final Appeal.

14.  We have dismissed the application for leave to appeal the judgment on the counterclaim, so stay of execution pending appeal of the judgment on the counterclaim does not arise. The plaintiff has leave to appeal the dismissal of her claim for repayment of debt as of right. She seeks continuation of the Mareva injunction and the lis pendens pending determination of that appeal. Her case was dismissed as the judge rejected her evidence that she had lent $17.8 million to the defendant and accepted the defendant’s evidence that the payments were gifts from her stemming from their sexual relationship with no legal obligation to repay. The plaintiff failed to upset the factual findings on appeal to this court. Faced with concurrent findings of fact, she would have very considerable difficulties to ask the Court of Final Appeal to disturb those findings. It does not appear from the submission of her counsel there is any valid basis to upset those findings. On a preliminary assessment, I am unable to say this is an arguable appeal.

15.  Given the lack of prospects of success on appeal, and the absence of any exceptional circumstances to justify an exercise of the discretion in the plaintiff’s favour, we have dismissed paragraphs 1 to 3 of her summons with costs to the defendant.

Hon Chu JA:

16.  I agree.