CHENG LAI KWAN v. NAN FUNG TEXTILES LTD

FAMV No. 13 of 1998

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 1998 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV No. 7 OF 1998)

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

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Mr Justice Bokhary PJ:

1. This is an application for leave to appeal to the Court of Final Appeal. The applicant had been injured in an accident at the factory where she worked. She sued her employer. On 9 December 1997 Yam J found her employer liable and awarded her $127,000 damages (arrived at after deducting a sum earlier paid to her by way of employee's compensation) plus interest and costs. Complaining that the award of damages was too low, she appealed to the Court of Appeal asking for a much larger award running to millions of dollars. On 28 April 1998 the Court of Appeal dismissed her appeal. She then sought the Court of Appeal's leave to appeal to the Court of Final Appeal. On 10 July 1998 the Court of Appeal refused such leave. And now she is before this Committee asking us to grant her such leave.

2. We turn now to the Hong Kong Court of Final Appeal Ordinance, Cap. 484 ("the Ordinance").

3. Section 22(1)(a) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal in any civil cause or matter

"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".

4. The award running to millions of dollars asked for by the applicant is one of unliquidated damages. In those circumstances the Court of Appeal was of the view that s.22(1)(a) of the Ordinance did not avail her. In taking that view, the Court of Appeal relied on the decision of the Privy Council in Zuliani v. Veira [1994] 1 WLR 1149.

5. In that case the Privy Council was concerned with, among other things, s.99(1)(a) and (5) of the Constitution of Saint Christopher and Nevis.

6. Section 99(1)(a) of that Constitution provides for an appeal as of right to the Privy Council from any final decision of the Eastern Caribbean Court of Appeal

"... in any civil proceedings where the matter in dispute on the appeal to Her Majesty in Council is of the prescribed value or more or where the appeal involves directly or indirectly any claim to or question respecting property or a right of the prescribed value or upwards."

Subsection (5) of that section sets the "prescribed value" at EC$5,000.

7. As can be seen, there is no material difference, the actual figures apart, between the scheme of s.22(1)(a) of the Ordinance and that of s.99(1)(a) and (5) of that Constitution.

8. This is what the Privy Council said (at p.1155 D-F):

"In providing that the automatic right of appeal should arise only where the matter in dispute was of the value of (or in excess of ) a precise figure the legislature has chosen not to include an award of unliquidated damages. In the view of their Lordships this provision should be strictly construed. No doubt there will be many cases, of which the present is one, where it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately awarded will be in excess of E.C.$5,000, and in such cases the Court of Appeal may very well think it right, as general rule, to grant leave in the exercise of its discretion. Equally, however, there may be cases - and again the present case may serve as an example - where the likely amount of damages is at or above the statutory threshold, but which are so lacking in merit that the Court of Appeal in its discretion would refuse leave."

9. We agree with that approach. In Hong Kong the equivalent discretion is contained in the "or otherwise" limb of s.22(1)(b) of the Ordinance, which provides that an appeal shall lie to the Court of Final Appeal in any civil cause or matter

"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 the Court for decision."

10. But Zuliani v. Veira type of discretion does not avail this applicant. For we are unable to say, even as a matter of the utmost probability let alone of virtual certainty, that the damages ultimately awarded would reach or exceed $1,000,000.

11. Is there any other basis on which the applicant can properly be given leave to appeal to the Court of Final Appeal?

12. We have considered whether such a basis can be found in this passage in the Court of Appeal's judgment:

"The judge had referred to the appellant's 2% disability for post concussional syndrome in his judgment. He must have taken that into account when he arrived at [the award of $150,000 as damages for pain and suffering and loss of amenities]."

13. In fact, that "2% disability" was what the respondent's psychiatrist, whose evidence Yam J accepted, assessed as a "loss of earning capacity of 2%". And such an impairment goes to loss of earnings or earning capacity rather than to pain and suffering and loss of amenities. But the judge made no award in respect of loss of future earnings or loss of earning capacity.

14. What if the award to the applicant was reopened; every element of loss put under the appropriate head; and every head of damage reassessed: are there reasonable prospects of the applicant then getting more than she has been given so far? All things considered, we do not think that there are reasonable prospects of that.

15. In such circumstances, there is no proper basis for granting the applicant leave to appeal to the Court of Final Appeal. Accordingly this leave application is dismissed.

Representation: