Dbs Bank (Hong Kong) Ltd v. Sit Pan Jit
Read the full judgment text of CACV 91A/2015 on BabelCite. This Court of Appeal judgment was delivered on 26 September 2016 before Cheung JA, Chu JA, Poon JA.
Civil appeal – leave to appeal to the Court of Final Appeal – section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484 – questions of great general or public importance – 'or otherwise' limb – misrepresentation under section 108 of the Securities and Futures Ordinance, Cap 571 – concurrent findings of fact – claim arising from financial transactions induced by representations alleged to be false, misleading or deceptive – judgment for plaintiff bank in the sum of US$3,429,724.27 with interest and costs and dismissal of defendant's counterclaim – whether the representee's subjective understanding of a statement is irrelevant to whether the statement is false, misleading or deceptive or to whether he was induced by it – whether fairness requires cross-examination of the representee on subjective understanding – whether contractual estoppel exists as a legal doctrine in Hong Kong and can defeat a s.108 claim – whether contractual clauses give rise to contractual estoppel – whether the Interfoto principle of incorporation forms part of Hong Kong law and applies to written contracts – concurrent findings of fact will not be disturbed save in exceptional circumstances amounting to a miscarriage of justice or violation of a principle of law or procedure – Sky Heart Ltd v Lee Hysan Co Ltd – meaning of words in a s.108 claim is objectively assessed and representee's subjective understanding is irrelevant – questions premised on overturning concurrent findings do not meet the high leave threshold – questions concerning contractual estoppel and the Interfoto principle are academic absent a factual finding of misrepresentation – 'or otherwise' limb is exceptional and not engaged by complaints amounting to a re-argument of concurrent findings or by the monetary value of the claim alone – leave refused – defendant to pay costs of the leave application on indemnity basis with a certificate for two counsel.
Legal issues: Whether leave to appeal to the Court of Final Appeal should be granted on questions of great general or public importance or under the 'or otherwise' limb
Outcome: Leave to appeal to the Court of Final Appeal refused.
Cites 5 cases
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CACV 91/2015 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 91 OF 2015 (ON APPEAL FROM HCA 382 OF 2009) _______________
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________________________ J U D G M E N T ________________________ Hon Poon JA (giving the Judgment of the Court) : Introduction 1.By a judgment dated 2 April 2015, Deputy High Court Judge Marlene Ng entered judgment for the plaintiff against the defendant in the sum of US$3,429,724.27 with interest and costs and dismissed the defendant’s counterclaim. We dismissed the defendant’s appeal on 10 June 2016. We upheld the Judge’s findings on, among other things, the meaning of the Words and that the Words were not false, misleading or deceptive as the defendant alleged. 2.The defendant now seeks leave to appeal to the Court of Final Appeal on the strength of 7 questions said to be of great general or public importance and the “or otherwise” limb pursuant to section 22(1)(b) of the Court of Final Appeal Ordinance, Cap 484. Questions of great general or public interest 3.The first 3 questions raised by the defendant are these. In a claim under s.108 of the Securities and Futures Ordinance, Cap 571 (s.108), where a representee alleges that he was induced by a statement as he subjectively understood it :
4.The 4th to 7th questions are premised on a factual finding of misrepresentation in favour of the defendants :
5.Questions 1 to 3 essentially seek to challenge the concurrent findings of fact made by the Judge and accepted by the Court of Appeal. It is however trite that the Court of Final Appeal will not disturb concurrent findings by the courts below save in exceptional and rare circumstances where there is a miscarriage of justice or violation of some principle of law or procedure : Sky Heart Ltd v Lee Hysan Co Ltd [1999] 1 HKLRD 100, at pp 113I – 114C. The party seeking to overturn concurrent findings of fact is required to state clearly what the special circumstances are that warrant the Court’s review of the findings below : Chan Wai Sun v Law Shiu Kai (2007) 10 HKCFAR 601, at [28]; Tam Mei Kan v HSBC International Trustee (2011) 14 HKCFAR 512, at [36]. The hurdle is not easy to surmount. 6.With respect, we do not consider Questions 1 to 3 come anywhere near to meeting the high threshold for leave to be granted to appeal to the Court of Final. 7.In respect of Question 1, it is well established that the meaning of the Words is to be objectively assessed. The defendant’s own subjective understanding is irrelevant. In any event, the Judge did consider the defendant’s own subjective understanding but for the reasons that she gave, rejected it. And we agreed with her. We fail to see how Question 1 can possibly arise in the circumstances. 8.In respect of Question 2, since the defendant has no prospect of overturning the concurrent findings on the meaning of the Words, it simply does not arise. 9.In respect of Question 3, we do not consider whether the defendant had been cross-examined on his subjective understanding before the Judge made the relevant findings against him is a question of great general or public importance. 10.Questions 4 to 7 are questions of law. They all premised on leave being granted on Questions 1 to 3. Since we are not going to grant leave on Questions 1 to 3, they cannot get off the ground either. The “or otherwise” limb 11.It is well established that the granting of leave to appeal under the “or otherwise” limb is an exceptional course : Chao Keh Lung v Don Xia (2004) 7 HKCFAR 260, at 263J. 12.The defendant relies on four reasons to invoke the “or otherwise” limb. 13.First, he complains that there are errors of law on the defendant’s credibility; the Call Report; the meaning of the Words, the Word being misleading or deceptive; unfairness in not following Browne v Dunn; and “conservative v representations” in the contents of the Recordings/Transcripts. With respect, these so-called errors are no more than a veiled attempt to ask the Court of Final Appeal to overturn concurrent findings of fact by lower courts. 14.Second, the defendant complained that the Judge and the Court of Appeal gave erroneous answers to Question 1 to 3. This is just a second attempt to argue Question 1 to 3. 15.Third, he relies on the novel questions of law in relation to a claim under s.108. But as said, there is no factual basis for these questions to arise. They are purely academic. 16.Finally, the defendant relies on the substantial amount of money or value at stake. We do not consider the amount of the claim alone constitutes an exceptional factor in favour of granting leave to appeal. 17.We are not satisfied that the reasons relied on by the defendant can satisfy the “or otherwise” limb. Conclusion 18.For the above reasons, we refuse to grant leave to the defendant to appeal to the Court of Final Appeal. 19.Costs should follow event. The plaintiff asks for indemnity costs pursuant to the contractual terms between the parties. We note that the Judge below had at [474] of her judgment acted on those contractual provisions and granted the plaintiff indemnity costs for the trial below. Although the plaintiff did not ask for indemnity costs of the appeal, we think it is entitled to have indemnity costs of this leave application. We order the defendant to pay the plaintiff the costs of the present application with a certificate for two counsel, to be taxed on indemnity basis if not agreed.
Mr Horace Wong, SC, & Mr Victor Dawes, SC, instructed by Zhong Lun Law Firm, for the Plaintiff (Respondent) Mr Martin Lee, SC, Mr Lee Siu Him & Mr Chau C F, Jeffrey, instructed by Wilkinson & Grist, for the Defendant (Appellant) | |||||||||||||||||||||
Cases cited in this judgment