Chim Pui Chung v. Securities and Futures Commission

FAMV000013/1999

FAMV No. 13 of 1999

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 13 OF 1999 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV Nos 36, 45 and 84 OF 1999)

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Appeal Committee: Chief Justice Li, Mr Justice Litton PJ and Mr Justice Ching PJ

Date of Hearing: 11 June 1999

Date of Determination: 11 June 1999

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

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Chief Justice Li:

1. This is the determination of the Appeal Committee.

2. The Securities and Futures Commission (SFC) presented a winding up petition against Mandarin Resources Corporation Limited ("the company") and Mr Chim Pui Chung ("Mr Chim") on the ground that minority shareholders of the company had been unfairly prejudiced and that it is expedient in the public interest to wind up the company on the just and equitable ground.

3. The trial judge, Burrell J, made a number of determinations. He gave directions for expert evidence, for Mr Chim to reply to the notice to admit facts, for specific discovery by Mr Chim, and for the dates of hearing of the petition. The judge refused Mr Chim's request for translation of the English documents into the Chinese language. And the judge declined the following directions sought by Mr Chim; that the SFC's claim should be limited to matters relating to the company and to no other companies; that the SFC's claim should be limited to events which occurred prior to 25 June 1996, the date of the petition; and that an extraordinary general meeting of the company be convened.

4. Mr Chim appealed against these determinations. The Court of Appeal dismissed these appeals on 23 and 24 March 1999 and handed down its reasons in three judgments on 1 April 1999. On 4 May 1999, the Court of Appeal refused Mr Chim's application for leave to appeal to the Court of Final Appeal.

5. Mr Chim now applies to us for leave. The grounds in his application are:

"(1) The point of law as in the trial of the case No 348/96 involving a dispute of over 500 million dollars.

(2) The 2nd respondent in the case No 348/96 is/was still serving sentence. To force him to plead/defend is against the Bill of Rights, Cap. 383.

(3) To forbid substantial shareholders of the company to convene a general meeting in accordance with Sec. 113 of the Companies Ordinance, Cap. 32, is not to the public interests."

6. Before us, he relies on the further ground that the SFC is invoking provisions in the Securities and Futures Commission Ordinance, Cap. 24, which were not effective when the events in question occurred. And he submits that this is contrary to the public interest, the Bill of Rights Ordinance and the ICCPR.

7. In our view, as was rightly held by the Court of Appeal, having regard to their subject matter, the judgments in question are not final judgments within sec. 22 of the Court of Final Appeal Ordinance, Cap. 484, and Mr Chim's application for leave is governed by sec 22(1)(b) which provides:

"22. Civil appeals

(1) An appeal shall lie to the Court in any civil cause or matter -

(b) 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."

8. The determinations made by the trial judge were within his discretion. The Court of Appeal was right in holding that there is no justification for interfering with the judge's exercise of discretion and in dismissing Mr Chim's appeals. In our opinion, there is no question involved which is of great general or public importance. And there is no reason why these matters ought "otherwise" to be submitted to the Court.

9. Accordingly, we dismiss the application for leave with costs.

Representation:

Applicant, Mr CHIM Pui Chung, in person

Mr Philip Heslop QC and Mr Anderson Chow (instructed by Messrs Herbert Smith) for the respondent