TONG TIM NUI v. HONG KONG HOUSING AUTHORITY

CACV 281/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 281 OF 1998

(ON APPEAL FROM HCMP 114/1998)

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J U D G M E N T

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Godfrey, J.A. (giving the judgment of the court) :

1. This is an application for leave to appeal to the Court of Final Appeal from a decision of this court dismissing the applicant's appeal (along with a number of other appeals heard at the same time).

2. The applicant claims to be entitled to appeal to the Court of Final Appeal as of right. Such an appeal does lie, from a final judgment of this court, where the matter in dispute on the appeal amounts to or is of the value of $1 m 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 m or more; see section 22(1)(a) of the Court of Final Appeal Ordinance (Cap. 484). But it is well established that an appeal in relation to a claim for unliquidated damages, which this is, does not fall within that class of appeals in which an appeal to the Court of Final Appeal lies as of right. In the case of the present applicant, the award of damages in her favour was less than $1/2 million, and although her appeal to this court, claiming that the award was too small, and that she ought to have received an award of a sum greater than $1 m, the case is still not one in which an appeal lies as of right to the Court of Final Appeal.

3. But section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides for an appeal to lie to the Court of Final Appeal, at the discretion of this court (as distinct from as of right) if, in the opinion of this court, 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 of final Appeal for decision. But the only question in this case is whether or not this particular applicant should have been awarded more money than in fact she was awarded by the judge. This case is not of great general or public importance. It is not even a test case, for the facts of other cases will be different. Accordingly, this would not seem to be a suitable case for us to grant leave to appeal in the exercise of our discretion.

4. However, it is said that it was not open to this court to dismiss any of the appeals to this court on any of the grounds on which it did dismiss them. It is said it was not open to this court to differ from the trial judge; that it was not open to this court to conclude, contrary to the views of the trial judge, that what have been referred to as the 1961 communications gave this applicant and the other unsuccessful appellants no rights to live in Rennie's Mill indefinitely; that it was not open to this court to decide, contrary to the views of the trial judge, that no officer of the colonial administration, even the Governor, could, by the 1961 communications, affect the right of his successors to implement the provisions of the Resettlement Ordinance; and that it was not open to this court to decide that the judgment of the trial judge was misconceived.

5. We have considered whether any of those grounds justify the grant of leave to appeal to the Court of Final Appeal, but even the appellant (whose representative, her son, we allowed to address us generally) accepted when the point was put to him that this court was not bound by anything that the trial judge had decided.

6. In these circumstances, we see no substance in this application and for all these reasons, we will dismiss it. We will award costs to the respondent, which we will assess in the sum of $20,000, but with liberty to the applicant to apply for a taxation of the respondent's costs instead, if so advised.