Man Ping Nam v. Man Mei Kwai
Read the full judgment text of CACV 193/2002 on BabelCite. This Court of Appeal judgment was delivered on 25 March 2003 before Le Pichon JA, Cheung JA, Stone J.
Civil procedure – leave to appeal to Court of Final Appeal – section 22(1)(a) automatic right of appeal – monetary value threshold of $1 million or more – section 22(1)(b) matter of great general or public importance – New Territories Ordinance section 15 – registered manager of Wui land – power to grant tenancies – whether consent of Secretary for Home Affairs required – Wui lands held from Government vested in registered manager under section 15 of the New Territories Ordinance – applicant member of Wui challenged fresh fish pond tenancy granted by respondent manager to 2nd defendants – counterclaim – trial judge found no subsisting tenancy with fish pond tenants – majority of Court of Appeal held no lis between parties – First issue: whether automatic right of appeal under section 22(1)(a) arises – court followed Cheng Lai Kwan v Nam Fung Textiles Limited (1997-98) 1 HKCFAR 204, holding automatic right of appeal strictly construed and arising only where matter in dispute is of value of or in excess of precise figure adopted by legislature – question of whether registered manager might grant tenancy without consent is question of power with no monetary value – value of underlying property cannot transmute issue into dispute of monetary value – claims for unliquidated damages do not come within section 22(1)(a) – held: no automatic right of appeal – Second issue: whether matter of great general or public importance arises under section 22(1)(b) – applicant framed question whether registered manager can grant leases or enter tenancy agreements over leasehold interests of tsos, tongs and wuis without consent of Secretary for Home Affairs under section 15 – held (by majority): question did not actually arise on appeal and was merely tangential or incidental – no lis between parties as trial judge found no subsisting tenancy – distinguished from CACV 137 of 2002 where section 15 consent was actually an issue for decision – Cheung JA dissenting would have granted leave as question of whether consent of Secretary of Home Affairs required in granting tenancies by manager of Tso land was matter of great general or public importance – application dismissed with costs.
Legal issues: Whether automatic right of appeal under section 22(1)(a) arises · Whether matter of great general or public importance arises under section 22(1)(b)
Outcome: Application for conditional leave to appeal to the Court of Final Appeal dismissed with costs (by majority: Le Pichon JA and Stone J; Cheung JA dissenting).
Cited by 13 cases · Cites 1 case
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CACV000193A/2002 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) ____________________
____________________ Coram: Hon Le Pichon, Cheung JJA and Stone J in Court Date of Hearing: 25 March 2003 Date of Judgment: 25 March 2003 Date of Handing Down Reasons for Judgment: 28 March 2003 _________________________ REASONS FOR JUDGMENT _________________________ 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:
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.
Representation: Mr Louis K Y Chan and Mr Jacky Jim, instructed by Messrs Wong & Poon, for the Plaintiff by counterclaim/Applicant Mr Anthony Neoh SC and Mr K M Chong, instructed by Messrs Christine M Koo & Ip, for the 1st Defendant by counterclaim/Respondent |
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