Intercontinental Housing Development Limited v. Quek Teck Huat and Others

CACV000037A/1986

BETWEEN

Coram: Cons, V.-P., Fuad & Kempster, JJ.A.

Date of hearing: 23rd September, 1986.

Date of delivery of judgment: 23rd September, 1986.

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JUDGMENT

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Cons, V.-P.:

1. This is an application for leave to appeal to Her Majesty in Council. The Plaintiff a limited company; has taken proceedings in the Commercial Court against seven Defendants, In them it is alleged that the 4th Defendant was party to a conspiracy formed at least by the 1st, 2nd and 3rd Defendants, a conspiracy by which the company was defrauded of some $127 million. The 4th Defendant applied for so much of the claim as was against him to be struck our. The hearing came before Rhind J, who refused the application, although he agreed in passing that the claim, as it stood, was by no means a model of the pleaders art.

2. The 4th Defendant appealed to this Court, which reversed the decision of the learned Judge, taking the view that the acts alleged against the 4th Defendant in the Points of Claim, - save for a few subsequent to the impugned transaction, which could perhaps be accepted as evidence indicating fraudulent participation, - were equally, if not more, susceptible of innocent explanation.

3. The Plaintiff now wishes to take the matter further. Mr. Kwok, who appears for the company, makes three submissions: firstly, that appeal lies as of right, the matter in dispute being well over $500,000; secondly, that as a matter of discretion we ought to grant leave, for the appeal would raise questions of  great general or public importance; and finally, there are otherwise good reasons. The first point, as Mr. Kwok concedes, is not open to him in this Court. Appeal as of right lies only in respect of final judgments. That what we are concerned with here is an interlocutory judgment has already been settled by our decision in Coronation Electronics Ltd. v. Tharoomals (Hong Kong) Ltd. ⁽¹⁾ following the earlier decision of Perak Pioneer Ltd. v. Bumiputra Malaysia Finance Ltd. & Others ⁽²⁾.

4. For my part I take the view that two of the questions posed in the Affidavit filed in support of the application, - i.e. questions 1 and 2, - may perhaps raise questions of great general or public importance. But if so, they are raised in the abstract. What this Court decided was that the facts alleged against the 4th Defendant, even if proved, would not constitute evidence of the kind in which Mr. Kwok hopes to interest their Lordships. And that decision does not raise any question of great general or public importance, or which ought, to my mind, for any other reason go before their Lordships.

5. I would refuse the application.

Fuad, J.A.:

6. I agree with my Lord the Vice-President. It is no longer open to us to hold that the Applicant has an appeal as of right. I am quite unable to regard the questions proposed to be raised before their Lordships of the Privy Council as being of great general or public importance. I find no exceptional circumstances or unusual features that would justify the granting of leave by reason of the words "or otherwise" which occur at the end of rule 2(b). I respectfully agree with the judgment of the Full Court in Hui Shiu-wing v. Cheung Yuk Lin ⁽³⁾ as to the meaning of those words as used in that rule.

Kempster, J.A.:

7. I too agree for the reasons given by my Lords that this application should be refused.

(1)    Civil Appeal No. 26 of 1986

(2)    Civil Appeal No. 62 of 1985

(3)    [1968] H.K.L.R. 176

Representation:

Kenneth Kwok (M/s Cheng, Yeung & Co.) for Plaintiff/Applicant

Charles Ching, Q.C. and William Stone (M/s Lovell, White & King ) for 4th Defendant/Respondent