The Bo Fong Studio v. Henry G Leong Estates Ltd

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

APPEAL No. 3 of 1948

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(O.J. Action No.305-307/47)

Coram: Mr. Justice E.J. Williams - President, Mr. Justice T.J. Gould - Appeal Judge, Mr. Justice J. Reynolds - Appeal Judge.

Date of Judgment: 31 March 1948

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DECISION

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1. This is a Notice of Motion (Motion No.3) for leave to appeal to His Majesty the King in Council from a decision of the Full Court of the 11th March refusing a stay of execution of a judgment dated the 1st March of Gould J. until such time as an appeal from that judgment should be heard.

2. By rule 2(a) of the Rules for Appeals to the Privy Council, an appeal as of right lies under certain conditions. By rule 2(b) an appeal is at the discretion of the Court when other conditions are fulfilled. Rule 2 reads:

3. Counsel for the appellant submitted on the authority of Standard Discount Company v. Otard de la Grange 3 C.P.D. 67, that, though the order of the Full Court refusing to stay execution was interlocutory in form, it was in effect final in that it became effectual against the appellant, no further step being required.

4. The Court cannot agree with this submission. In paragraph 508 of 19 Hailsham p.206, the difference between an interlocutory and a final judgment is explained. Clearly the order of Gould J. giving judgment to the respondents was a final order. In the words of Brett L.J. (p.71) in the Standard Discount Co. (supra) the judgment was 'the last step which must be taken in order to fix the status of the parties, with respect to the matter in dispute'. The order of the Full Court refusing a stay of execution did not decide or affect in any way the status of the parties. Three alternative tests for ascertaining the finality of a judgment or order are set out in the notes to paragraph 508 of 9 Hailsham (supra), the weight of authority being in favour of the third which reads 'Does the order as made, determine the dispute? 'The order of the Full Court does not determine any dispute or right between the parties.

5. Such being the decision of the Court, it is unnecessary to consider at length whether the matter in dispute is of the value of $5,000. Though Counsel for the appellants submitted that on the evidence contained in the affidavits as to the rateable value of the premises and the amount expended by the appellant in establishing his business, the matter in dispute was over $5,000. In the opinion of the Court, however, this is to substitute the value of the matter in dispute before Gould J. for that before the Full Court. The former is irrelevant when deciding whether the matter in dispute before this Court involves a sum of $5,000 or upwards - the matter in dispute here is whether the Full Court properly exercised its discretion in refusing to stay execution.

6. On the basis that the decision appealed from is interlocutory in nature, is this a case where under rule 2(b) the Court should exercise its discretion to grant leave to appeal on the ground that the question involved is of general or public importance? Setting aside for the moment the argument of counsel for the respondents that the question at issue is only one whether the discretion as to stay of execution has been exercised rightly or wrongly in the particular case, the Court would not be disposed to regard the matter as of very great importance even if the question involved in the appeal were the main question decided in the action. The matter is not one of the power of the Governor in Council to make orders of exemption under the existing legislation, the Landlord & Tenant Ordinance 1947 - that is undoubted and any development scheme which has the approval of the Governor in Council duly acting upon advice will not doubt receive the necessary exemption - the question involved in the action is whether there was power under the Proclamation, now repealed, to make this particular order and whether, by reason of the machinery used to obtain the order, there was some technical defect which rendered the order bad. The Proclamation having been replaced, the questions at issue in this action are not likely to recur and even if on appeal the order were held bad, the Governor in Council could make another order under the Ordinance - it cannot be assumed that the Tribunal appointed to consider the matter under the Ordinance would take a different view of the merits of the application from that of the committee under the Proclamation. However, apart from the question of the importance of the action itself, the Court takes the view that the decision appealed from is one of the exercise of the discretion of the Court in a particular case. That is not a matter of general or public importance as the exercise of a discretion must always be guided by the particular circumstances of each case.

7. Even assuming that the Court were disposed to grant leave to appeal (which it is not) the only order under rule 5 which would benefit the appellants in any way would be one which would be in effect a review of the decision of this Court already given that no special circumstances have been shown to justify a stay of execution. It is unnecessary to consider whether there is power to make such an order as the Court is not in any event disposed to make it.

8. The decision of the Court therefore is that the motion is refused with costs. Two other similar motions (Nos. 4 & 5) are accordingly also dismissed.