Delight World Ltd v. The Secretary for Transport

cacv 167/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 167 of 2004

(on appeal from LDMR NO. 2 of 2002)

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BETWEEN

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Before : Hon Rogers VP, Le Pichon JA and A Cheung J in Court

Date of Hearing : 7 July 2005

Date of Judgment : 7 July 2005

Date of Handing Down Reasons for Judgment: 13 July 2005

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REASONS FOR JUDGMENT

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Hon Rogers VP:

1.This was an application by the respondent for leave to appeal to the Court of Final Appeal.  The application was put on two grounds namely under sections 22(1)(a) and 22(1)(b).  At the conclusion of the hearing, the application was refused but the applicant was given leave to file a notice of motion for leave to appeal to the Court of Final Appeal within 14 days after the date of the handing down of the judgment of the Court of Final Appeal in FACV No. 11 of 2005 to be heard in November 2005.

The application under section 22(1)(a)

2.The application under this section was put on the basis that there was no dispute between the parties that the compensation payable to the applicant was a minimum of HK$15,900,000.  The difficulty that faced the respondent on the application was that the matter in dispute between the parties is the quantification of a claim for compensation.  On that footing, it is not a claim in respect of property, since the applicant no longer has the property or claims any right to have the property.  Its claim is a claim to compensation.  If that be right, the claim is a claim which requires to be assessed and quantified.  It is therefore not a liquidated claim.  In those circumstances the approach indicated in a number of cases, for example, Bill Chao Keh Lung v Don Xia, FAMV6/2004, 15 June 2004, Cheng Lai Kwan v Nan Fung Textiles Ltd (1997-98) 1 HKCFAR 204, Shum Kam Fai v Lam Chi Wai,FAMV No. 38 of 2002, 16 December 2002, LKK Trans Ltd. v Wong Hoi Chung (30/05/2005, FAMV6/2005),Wong Hoi Chung v LKK Trans Ltd. (08/02/2005, CACV116/2004) would dictate that the claim does not come within section 22(1)(a). 

3.Mr Miu, who appeared on behalf of the respondent, sought to argue that the matter in dispute was nevertheless a civil right the value of which must necessarily exceed $1 million.  In my view there is a distinction to be drawn between a civil right such as was considered in the case of Crocodile Garments Limited v La Chemise Lacoste S.A., FAMV No. 14 of 2001 and a claim for damages or compensation.  In the Crocodile Garments case what was in issue was a trademark and a right to apply for a trademark.  That may be considered a civil right.  In contrast damages for infringement were not in issue.  The difficulty with the respondent’s submission is that any claim for compensation or damages which comes before a court must involve a civil right of one description or another.  It may be a civil right which arises under statute, for example, the Employees’ Compensation Ordinance, Cap. 282, or it may be a right which arises from a breach of statutory duty or it may be a right which arises at common law.  All these could be described as civil rights but the claims which arise under them are unliquidated.  I do not consider that in this context any distinction can be drawn simply from the fact that Article 105 of the Basic Law enshrines the right to compensation for lawful deprivation of property.

Section 22(1)(b)

4.The respondent sought leave to appeal under this section on the basis that the question involved, namely the proper construction of section 12(aa) of the Lands Resumption Ordinance, Cap. 124, was one of great general or public importance.  In the light of the view taken by this court as to the construction of that subsection it would not appear appropriate for this court to grant leave to appeal on that basis. 

5.In respect of the applicant’s application for leave to file the notice of motion at some time in the future, there was no dispute between the parties that it was appropriate to make such an order.

Hon Le Pichon JA:

6.I agree.

Hon A Cheung J:

7.I agree.

Mr Anthony Ismail, instructed by Messrs Kao, Lee & Yip, for the Applicant/Respondent

Mr Nelson Miu, instructed by Department of Justice, for the Respondent/Appellant