CATHAY PACIFIC AIRWAYS LTD v. WONG SAU LAI

FAMV No. 33 of 2005

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2005 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV NO. 388 OF 2003)

_____________________

_____________________

______________________

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

______________________

Mr Justice Bokhary PJ:

1.  It would appear that something can usefully be said for the guidance of the legal profession in regard to conditions imposed by the Court of Appeal when granting leave to appeal to the Court of Final Appeal. 

2.  Section 25(1) and (2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, provides as follows:

“(1)  Where the Court of Appeal or the Court decides or is required to grant leave to appeal pursuant to an application made under section 24 it may grant leave subject to such conditions as it considers necessary.

  (2)  Without restricting the generality of subsection (1) leave granted under subsection (1) may be granted -

(a)  upon a condition that the appellant shall enter into good and sufficient security, for the due prosecution of the appeal, and the payment of all such costs as may become payable to the respondent in the event of the appeal being dismissed for non-prosecution, or of the Court ordering the appellant to pay the respondent’s costs of the appeal; and

(b) upon such other conditions (if any) as to the time or times within which the appellant shall procure the preparation of the record as the Court of Appeal or the Court considers appropriate.”

Conditions other than those specifically provided for under subsection (2)(a) and (b) may conveniently be called “additional conditions”. 

3.  Ms Wong Sau Lai was injured while working as a cabin attendant on board a passenger aircraft operated by her employer Cathay Pacific Airways Ltd.  She sued Cathay in the tort of negligence, and was successful to the extent that the trial judge (Andrew Cheung J) found Cathay 50% to blame and the Court of Appeal (Le Pichon and Yuen JJA, Rogers VP dissenting) upheld that finding.  The Court of Appeal granted Cathay leave to appeal to the Court of Final Appeal, but made such leave subject to additional conditions.  These additional conditions are that Cathay undertake to the Court of Final Appeal (i) to pay Ms Wong’s costs in the Court of Final Appeal whether or not the appeal is allowed by the Court of Final Appeal and (ii) not to seek costs against Ms Wong in the courts below in the event that the appeal is allowed by the Court of Final Appeal. 

4.  Dissatisfied with that, Cathay then took out an application before us seeking leave to appeal to the Court of Final Appeal (i) against the Court of Appeal’s order making its grant of leave subject to additional conditions and (ii) against the Court of Appeal’s judgment dismissing its appeal to them.

5.  Cathay’s application is misconceived in so far as it seeks leave to appeal to the Court of Final Appeal against the Court of Appeal’s order making their grant of leave subject to additional conditions.  In Hunt & Winterbotham (West of England) Ltd v. BRS (Parcels) Ltd [1962] 1 QB 617 at p.638 Lord Evershed MR, speaking for the English Court of Appeal, said that:

“… if a party asks for leave to appeal and is given it in this court only subject to conditions, he is entitled to treat the conditional grant as a refusal of leave to appeal and apply to the appeals committee accordingly.”

That - we say for the guidance of the legal profession - is the position here, too.  No appeal lies against an order of the Court of Appeal making its grant of leave subject to additional conditions.  The only avenue open to an applicant who is unwilling to accept additional conditions imposed by the Court of Appeal is to come to the Appeal Committee and seek leave without additional conditions.  What we may then do ranges from granting leave without additional conditions to refusing leave altogether.  Cathay withdrew this application after having been warned that it could result in such refusal. 

6.  Such withdrawal leaves extant - it is not argued otherwise - the leave to appeal granted by the Court of Appeal and all the conditions, including additional ones, which they imposed when granting such leave.  The appeal will proceed to the Court of Final Appeal on that basis. 

7.  There are a number of consequential directions upon which the parties are agreed and which they together invite us to make.  These are:

(i)	that the time for Cathay to provide the undertaking required by the Court of Appeal be extended to 6 January 2006;
(ii)	that Cathay file its notice of appeal on or before 6 January 2006;
(iii)	that Cathay file Part A of the Record on or before 19 January 2006;
(iv)	that Cathay file its printed case on or before 3 February 2006; and
(v)	Ms Wong files her printed case on or before 17 March 2006.

We make those directions.

8.  Cathay does not oppose the grant to Ms Wong of the costs of and occasioned by the withdrawn application to be taxed on a common fund basis (if not agreed) and to be paid forthwith.  We grant Ms Wong such costs and order legal aid taxation thereof.