MAN PING NAM v. MAN MEI KWAI

CACV 193/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 193 OF 2002

(ON APPEAL FROM HCA NO. 9852 OF 1998)

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REASONS FOR JUDGMENT

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Hon Le Pichon JA:

1. This is an application for conditional leave to appeal to the Court of Final Appeal. It is made on two bases: first, under section 22(1)(a) as of right and secondly, under section 22(1)(b), that there is a matter of great general or public importance to be considered. At the hearing, by a majority, the application was dismissed with costs for reasons to be handed down in writing later. This we now do. The facts of this case fully appear in the judgment of this court and I do not propose to repeat them here.

Appeal as of right

2. The applicant is a member of the Wui whose lands held from the Government are vested in the respondent, the registered manager under section 15 of the New Territories Ordinance. For there to be an appeal as of right, the applicant has to show that the matter in dispute on the appeal is of a value of $1 million or more. Mr Chan for the applicant initially conceded that he was not within section 22(1)(a). In reply, he withdrew the concession and sought to argue that as the unlet land of the Wui had a value in excess of $1 million, "the appeal involves, directly or indirectly, some claim to or question respecting property or some civil right amounting to or of the value" of $1 million or more within the latter part of section 22(1)(a).

3. The applicant relied on the decision of the Appeal Committee in Cheng Lai Kwan v Nam Fung Textiles Limited (1997-98) 1 HKCFAR 204. But that case made it quite clear (at 206F-I) that the automatic right of appeal only arises where 'the matter in dispute' was of the value of or in excess of the precise figure adopted by the legislature and that the provision should be strictly construed. It is difficult to see how that case can be of assistance to the applicant.

4. In the present case, the matter in dispute on the appeal is said to be whether the respondent might grant a tenancy without the consent of the District Officer or the Secretary for Home Affairs under section 15 of the New Territories Ordinance. Such a question has no monetary value. The value of the underlying property subject to the power of letting vested in the respondent does not and cannot transmute the issue into one which has a monetary value. Further, claims for unliquidated damages do not come within section 22(1)(a). See Cheng Lai Kwan. In my view, no automatic right of appeal exists.

Matter of great general or public importance

5. The question of great general or public importance said to arise has been framed in these terms in paragraph 20 of Mr Chan's skeleton:

"... whether a registered manager can grant leases or enter into tenancy agreements over leasehold interests of the tsos, tongs and wuis in the New Territories without the consent of Secretary for Home Affairs under Section15."

6. The basis of the applicant's counterclaim in the court below was that the respondent had granted a fresh fish pond tenancy to the 2nd defendants (by counterclaim) in early 1998. The trial judge found that there was no subsisting tenancy with the fish pond tenants about which the applicant had been complaining. The majority of this court held that in those circumstances there was no lis between the parties. The appeal was thus decided by applying established legal principles as to the circumstances in which a declaration should be made. It can be seen that the question framed by Mr Chan is not a question which actually arises on the appeal. It is a tangential or incidental question which would only have arisen had a lis existed. This is to be contrasted with the decision of this court (differently constituted) in CACV 137 of 2002 handed down on the same day where one of the issues for decision was the need for consent under section 15. Suffice it to say that an application for leave in CACV 137 has been set down for hearing at the end of April.

7. For these reasons, I do not consider that the present case is an appropriate case to grant the applicant leave to appeal to the Court of Final Appeal.

Hon Cheung JA:

8. For my part, I would consider the question of whether the consent of the Secretary of Home Affairs is required in the granting of tenancies of by the manager of Tso land to be a matter of great general or public importance fit to be considered by the Court of Final Appeal.

Hon Stone J:

9. For the reasons given by Le Pichon JA, I also agree that leave should not be granted to appeal to the Court of Final Appeal.