CHAN SIU LUN v. HUI CHO YEE AND ANOTHER

CACV 171/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 1999

(ON APPEAL FROM HCPI 27 OF 1999)

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D E T E R M I N A T I O N

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Leong, J.A. (giving the determination of the Court):

1. This is an application for leave to appeal to the Court of Final Appeal.

2. The applicant was injured in a traffic accident in December 1991 in which the two respondents were involved. On 17th May 1998 in a claim for damages for negligence against the two respondents, Nguyen, J. awarded to the applicant damages in the sum of $267,852. The applicant appealed against this award. On 12th November 1998 the Court of Appeal allowed his appeal and increased the damages to $322,934. The applicant then sought leave to appeal to the Court of Final Appeal but his application was dismissed.

3. On 11th January 1999, the applicant issued proceedings against the respondents on the same cause of action claiming damages for negligence. His action was struck out by the Registrar on the ground of "res judicata". On 11th June 1999, Cheung, J. dismissed his appeal against the Registrar's order striking out his action. His appeal to this Court against Cheung, J.'s decision was dismissed by this Court on 13th October 1999. The applicant now seeks leave to appeal to the Court of Final Appeal.

4. S. 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides for civil appeals to the Court of Final Appeal as follows:

"(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 Court for decision."

5. The applicant's claim is an award of unliquidated damages and the question involved in the appeal was whether his claim should be struck out by the Registrar on the ground of "res judicata". The applicant cannot make avail of s. 22(1)(a) of the Ordinance for appeal as of right. The appeal is not from a final judgment and the matter in dispute was unliquidated damages. The applicant's claim is plainly an abuse of process. There is no question of great general or public importance involved in the matter in dispute or otherwise this Court should exercise its discretion to have the matter submitted to the Court of Final Appeal for decision.

6. The application is therefore dismissed with costs to the respondents.

7. As we said in our decision refusing leave, this is plainly a case of abuse of legal process and on that basis, it would be appropriate for costs to be awarded against the applicant for the respondents on an indemnity basis.