King Royal Ltd v. Lam Kwan Yuk

HCMP 448/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 448 OF 2005

(ON AN INTENDED APPEAL FROM DCCJ NO. 4617 OF 2002)

______________________

BETWEEN

______________________

Before: Hon Rogers VP in Chambers

Date of Hearing: 18 April 2005

Date of Judgment: 18 April 2005

Date of Handing Down Judgment in Open Court: 27 April 2005

______________________

J U D G M E N T

______________________

1.This is an application for leave to appeal on grounds upon which the Judge below did not grant leave.  It arises from an order made by H H Judge Wong on 25 February this year whereby leave was granted to the Defendant “to appeal against the Order made by this Court on 10^th January 2005 on the proposed grounds, Nos. 5, 6, 7, 9 and 10, set out in the draft Notice of Appeal annexed to the summons filed herein on 7^th February 2005.”

2.The question which arises to start with, in my view, is whether it is in the purview of the Judge below to restrict the grounds which can be argued on the appeal.  Starting at the back first, one might make this observation, that it is always open to an appellant who has an appeal before this court to file an amended Notice of Appeal provided the Appellant does so within the time specified which is, in fact, quite a generous time, and an Appellant has plenty of time to do it usually before the appeal is heard.

3.On that footing, one queries at once as to whether there would be a restriction imposed by the Rules or the Ordinance.  I go first to the District Court Ordinance.  Section 63 provides for appeals to the Court of Appeal.  Section 63 reads:

“	(1)	Subject to subsection (3) an appeal can, with leave, be made to the Court of Appeal from every judgment, order or decision of a Judge in any civil cause or matter.
	(2)	An appeal is subject to Rules of Court; and
	(3)	A person against whom an order is made pursuant to section 20, 29, 48B or 52D is entitled to appeal to the Court of Appeal without leave.”

4.Section 64 provides for the powers of the Court of Appeal on appeal.  That section gives the Court of Appeal wide powers to deal with the matter according to the justice of the case and does not provide a basis for the imposition of any fetter on the issues to be considered by the Court of Appeal.  It reads as follows:

“	(1)	On any appeal, the Court of Appeal may draw any inference of fact and may-
		(a)	order a new trial on such terms as it thinks just; or
		(b)	order judgment to be entered for any party; or
		(c)	make a final or other order on such terms as it thinks proper to ensure the determination on the merits of the real question in controversy between the parties.
	(2)	On any appeal, the Court of Appeal may reverse or vary, in favour of a party seeking to support the judgment or order of the Court in whole or in part, any determinations made in the Court on questions of fact, notwithstanding that the appeal is on a point of law only, or any such determinations on points of law notwithstanding that the appeal is an appeal on a question of fact only.
	(3)	On any appeal, the Court of Appeal may receive further evidence in accordance with the provisions of the Rules of the High Court.”

5.The rules are provided under Order 58 of the Rules of the District Court, and it is sub-rule 2 which provides, first of all, that:

“	(1)	Subject to the provisions of this rule, an appeal shall lie to the Court of Appeal from any judgment, order or determination of a judge.
	(2)	Subject to the provisions of this rule, an appeal shall lie to the Court of Appeal from any judgment, order or determination of a master on the hearing or determination of any cause, matter or question or issue tried or assessed before him under Order 14, rule 6(2), Order 36, rule 1, Order 37, Order 49B or Order 84A, rule 3.
	(3)	Subject to the provisions of the Ordinance, an appeal under this rule shall lie only with leave of the Court of Appeal.
	(4)	An application for leave must be made to the judge or to the master in the case of an appeal under paragraph (2), not later than the expiration of the following period beginning on the date immediately following the date on which the judgment or order was sealed or otherwise perfected, that is to say:
		(a)	in the case of an appeal from any judgment, order or determination of a master in paragraph (2), 14 days;
		(b)	in the case of an appeal from an interlocutory order, or any judgment or order given or made under Order 14 or Order 86 by a judge, 14 days;
		(c)	in any other case, 28 days,
		or if leave is refused, within 14 days from the date on which such refusal to the Court of Appeal.”

6.There are various other provisions but there is no provision, for example, which requires a draft Notice of Appeal and, as has been pointed out by Mr Chan on behalf of the Plaintiff, there is no restriction in either the Ordinance or the Rules, either express or implied, which would require a proposed Appellant to specify what the grounds of appeal are in writing and, particularly, there is no provision which allows the court specifically to impose a restriction on the points which may be argued on appeal.  One can contrast that with the Rules of the High Court where there are set forms for an application for leave to appeal.  These require the inclusion of grounds of appeal.

7.Again, in contrast, my attention has been drawn to the Labour Tribunal Ordinance, Cap. 25 and the Rules made thereunder and the Small Claims Tribunal Ordinance, Cap. 338 and the Rules made thereunder which would provide such a restriction.  The applications for leave to appeal must be made in the prescribed forms and the questions of law involved have to be clearly stated.  Furthermore, the position is made, if anything, clearer by Rule 8A(2) of the Labour Tribunal (General) Rules which provides for the court granting leave to be able to alter or add to the grounds of appeal.

8.Mr Cheung who appeared on behalf of the Appellant seeks to argue other grounds than those specified in the order of the judge below.  He has drawn this court’s attention to the note in the White Book, Order 59/14/8 which there states that:

“Leave to appeal limited to specified issues - leave to appeal granted on terms - The court has power to grant leave to appeal limited to a specified issues, or issues (Sanderson v Blyth Theatre Co [1903] 2 KB 533; Jones v Biernstein [1900] 1 QB 100) in which case the appeal will be confined to the specified issue or issues, unless it is a case where the court subsequently grants the Appellant (on an application on notice to the respondent) leave to argue additional grounds at the hearing of the appeal (see Greenalls Management Ltd v Canavan (1977) The Times, May 19, Court of Appeal).”

9.This court together with the assistance of counsel has considered all these cases in some measure.  I have to say that the Sanderson case was of little assistance.  That was a case where it was a question as to whether the costs of a successful defendant should have been added to the costs which a successful plaintiff could recover against one of the other defendants.  In effect, the Court of Appeal did not allow those arguments to be raised because the successful defendant had not been made party to the appeal and was not present at the hearing of the appeal and, therefore, in the normal way, the court did not consider it right that any party who was properly not present at the proceedings should be prejudiced by any order which might be made by the court on those proceedings.  Therefore, I consider that that case is really no help at all.

10.The case of Jones v Biernstein seems to be a case where there was an appeal from the Divisional Court which had heard an appeal from the County Court.  Under the Judicature Act 1873 s.45 special leave was required to bring an appeal from the Divisional Court.  Under the Judicature Act 1894 s.1(5) the additional requirement was enacted that the application had to be made in accordance with the Rules.  Unfortunately, the rules which were in force in 1899 when that case was heard, were not available to this court.  It does seem that the court would not allow the appellant to argue a point because he had obtained leave to appeal from the Divisional Court on one point only and that point formed the only point in the Divisional Court’s decision.  The Court of Appeal confined the appellant to that point.  The point which was sought to be raised appears to have been a question of fact and, in those circumstances, it may well be that a different attitude would have been taken because, of course, appeals on questions of fact from the Divisional Court which had heard an appeal from the County Court were governed by different rules from appeals on questions of law.

11.The next case which was referred to was the Greenalls Management case and that was a case where the Court of Appeal held that the particular application before it was misconceived.  It was an application to set aside leave which had already been given.  As part of his judgment, Lord Woolf indicated that when a Justice of Appeal gave leave to appeal to the Court of Appeal from the High Court, there were three different types of order which could be made.  Either leave could be given generally or leave could be given with guidance as to what the Appellate Court judge thought was an important point or he could give leave to appeal on specified grounds, only indicating that he is not giving leave in relation to the other ground.  However, that was not an issue on that case.  It was simply that Lord Woolf was indicating what the powers of a Justice of Appeal were in granting leave to appeal from the High Court.  Of course, in Hong Kong, we do not have the necessity of seeking leave to appeal from decisions of the Court of First Instance.  It is an appeal as of right in Hong Kong and so, again, there are different matters which arise where, even on an appeal from the High Court, leave is required.  Nevertheless, the statement related to an order made by a judge of the Court of Appeal, itself, on an application where the grounds needed to be specified.

12.Finally, attention was drawn to the case of Smith v Cosworth Casting Processes Ltd whichis a practice note to be foundin [1977] 1 W.L.R. 1538.  It was referred to in the Greenalls Management decision.  This was an application to set aside leave which had already been granted by a member of the Court of Appeal.  Again, there was a statement by Lord Woolf.  I would simply cite paragraphs 3 and 4 of his judgment where he says:

“	3.	When leave is refused, the court gives short reasons which are primarily intended to inform the applicant why leave is refused.  Where leave is granted, reasons may be given which are intended to identify for the benefit of the parties and the court hearing the appeal why it was thought right to give leave.  There may be only one issue that the judge or judges giving leave felt it was necessary to draw to the attention of the parties and the court hearing the appeal.  It is a misconception to assume that, because only one aspect of the proposed appeal was mentioned in any reasons which were given, leave was granted under a misapprehension that there were not other issues to be determined on any appeal unless the reasons make this clear.
	4.	When leave is granted, the applicant does not need to know more than that he has the leave which he needs and therefore that he is entitled to proceed with the proposed appeal.  The intended respondent has no entitlement to receive reasons as to why the application was granted, in the same way he does not normally have any right to be heard on the application which is usually made ex parte.”

13.In my view, the order which was made in the court below, in so far as it purported to restrict the grounds which could be argued on the appeal, was not correctly made.  If the District Court gives leave to appeal, that is the end of the matter.  It gives leave to appeal and it is up to the appellant to formulate the grounds of the appeal as best it can.  If the appellant seeks to argue things which are unarguable, it is up to this court to prevent it from so arguing, but once leave is given, that seems to me to be the end of the matter.  It is of course often useful if an indication is given as to why leave to appeal was granted, but there seems to me to be no power in the District Court Ordinance or Rules which permits the judges’ master of that Court to restrict the grounds that may be argued.

14.The position would appear to be different if leave to appeal is granted by a judge of the Court of Appeal.  There the appellant has to provide reasons for and grounds of appeal when making the application see Order 59 r. 14(1A) and (2)(b) and rubrics 59/14/28 and 29.  There, also, leave to appeal is granted by this court itself and the question is a matter of the powers of a single judge of the court rather than one of interpretation of the District Court Ordinance and Rules.

15.It seems to me that the Defendant was right to bring this matter to the court because an order was made which, on the face of it, seemed to restrict its right to raise arguments in the Court of Appeal and it is a practice which, in my view, should not be continued.  I have to say that it is something which I have seen before but it has not previously caused a difficulty.

Mr Jeremy S K Chan, instructed by Messrs Ma Tang & Co., for the Plaintiff/Respondent

Mr Wallace Cheung, instructed by Messrs Choi & Liu, for the Defendant/Applicant