CHOI WING CHEONG v. LEE YUE CHUEN

[English Translation - 英譯本]
CACV 2/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 2 OF 2005

(ON APPEAL FROM HCB NO. 16148 OF 2003)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court):

Application for Leave to Appeal

1.  On 19 January 2004, Deputy High Court Judge Poon, as he then was, made a bankruptcy order against the Debtor in his absence.

2.  On 21 February 2004, the Debtor applied to the court to set aside the bankruptcy order.  On 8 December 2004, Tang J, as he then was, dismissed the Debtor’s application.

3.  The Debtor appealed to this Court against the judgment of Tang J, and this Court dismissed the appeal on 17 July 2007.  In respect of the judgment of this Court, the Debtor now applies for leave to appeal to the Court of Final Appeal.

Hong Kong Court of Final Appeal Ordinance

4.  Section 22(1) of the Hong Kong Court of Final Appeal Ordinance (‘The Ordinance’), Cap. 484 of the Laws of Hong Kong, provides that a litigant may lodge an appeal to the Court of Final Appeal only under the following circumstances:

(a)       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 $1000000 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 $1000000 or more;

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, 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;

Leave to Appeal as of Right

5.  Where the Debtor seeks to lodge an appeal as of right as conferred by section 22(1)(a) of the Ordinance, he must show that the judgment being appealed against is a final judgment and that the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more.  In B + B Construction Ltd v Sun Alliance and London Insurance Plc (2000) 3 HKCFAR 503, the Court of Final Appeal interpreted the term “final judgment” as follows:

the [determination of] whether an order of the Court of Appeal is a final or interlocutory order […] involves an examination of the nature of the application to see whether the order made upon such application would, whether it fails or succeeds, determine the whole action.  In considering the nature of the application, it is necessary to look not only at its form, e.g., under which order or rule of court it is made, but also the purpose and substance of the application and the issues to be determined by the court.

6.  In the present case, the Debtor’s ground of applying to set aside the bankruptcy order was that the order was made in his absence.  If Tang J granted the application, this only meant that the order would be set aside, and the court would still have to reconsider the Creditor’s application  before deciding whether a bankruptcy order should be made.  This being the case, the order made by Tang J cannot be regarded as a final judgment, and therefore the Debtor’s case does not satisfy the requirement under section 22(1)(a).

7.  Furthermore, in Morgan Stanley Emerging Markets Inc. v. Legend International Resorts Limited, FAMV No. 11 of 2007, the Court of Final Appeal explained the nature of a winding-up order as follows: a creditor who issues a winding-up petition is not suing on his debt.  If a winding-up order is made, it does not constitute or lead to an order for repayment of the debt.  Nor can the petitioner recover the debt on the basis of the winding-up order.  As a winding-up petition is not a claim for a liquidated claim, the ensuing winding-up order does not confer upon the debtor an appeal as of right even if the order is made pursuant to a debt exceeding HK$1,000,000.

8.  In our view, the above explanation is fully applicable to bankruptcy orders.  Although the bankruptcy order in the present case was made pursuant to a debt exceeding HK$1,000,000, it was not a claim for a liquidated sum exceeding HK$1,000,000.  Therefore, whether or not the bankruptcy order is a final judgment, the Debtor is not entitled to lodge an appeal as of right.

Exercise of Discretion to Grant Leave to Appeal

9.  Where the Debtor relies on section 22(1)(b) of the Ordinance, he must show that the judgment 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.

10.  In the affirmation in support of his application, the Debtor reiterates that he has not incurred any debt and sets out the grounds of his counterclaim against the Creditor.  This, however, cannot show that the refusal of the court to set aside a judgment made in the absence of a party is something which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

Conclusion

11.  For the above reasons, we dismiss this application with costs.