Wang Din Shin v. Nina Kung

CACV 67/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2003 

(ON APPEAL FROM HCAP nO. P8 OF 1999)

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BETWEEN

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Before:  Hon Yeung JA, Yuen JA & Wang J in Court

Date of Hearing:  29 June 2005

Date of Judgment:  29 June 2005

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J U D G M E N T

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Hon Yeung JA (giving Judgment of the Court):

1.The defendant appealed against the judgment of the trial judge (the Main Appeal) and the costs order he made (the Costs Appeal).

2.On 28 June 2004, we handed down our judgment dismissing the Main Appeal. As the Costs Appeal was not dealt with due to time constraints, we gave liberty to the parties to restore the Costs Appeal and to apply on the costs of the Main Appeal.

3.On 17 November 2004, we granted leave to the defendant to appeal to the Court of Final Appeal against our dismissal of the Main Appeal.

4.After hearing submissions on 8- 9 March 2005, we handed down our judgment on the Costs Appeal and on the costs of the Main Appeal (collectively referred to as ‘the Costs Orders’) on 19 April 2005.

5.The defendant now seeks leave to appeal to the Court of Final Appeal on the Costs Orders under the “or otherwise” ground in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

6.It is said that as the Costs Orders did not form part of the Main Appeal and the leave granted on 17 November 2004 did not extend to appeals against the Costs Orders, it would be unfair to the defendant if, in the event of success in the Main Appeal, she is unable to seek an order from the Court of Final Appeal to vary the Costs Orders.

7.Mr Jat Sew-tong SC, on behalf of the defendant, specifically refers to the fact that the Main Appeal and the Costs Appeal carry two different appeal numbers (CACV 460 of 2002 and CACV 67 of 2003 respectively).

8.The defendant is not seeking leave to independently appeal against the Costs Orders. As demonstrated in her Notice of Motion, the defendant only wants to ensure “that the Court of Final Appeal can deal with or revisit the Costs Orders if it becomes necessary to do so” (i.e. in the event of the Main Appeal being successful).

9.S 17(1) of the Hong Kong Court of Final Appeal Ordinance expressly provides:

“The Court may confirm, reverse or vary the decision of the court from which the appeal lies or may remit the matter with its opinion thereon to that court, or may make such other order in the matter, including any order as to costs, as it thinks fit.”

10.The defendant has challenged, not only the Costs Orders, but also and, mainly, the dismissal of the Main Appeal.

11.The defendant has obtained leave to appeal against the dismissal of the Main Appeal. In dealing with the appeal against the dismissal of the Main Appeal, the Court of Final Appeal can make any order as to costs as it thinks fit.

12.The fact that the Main Appeal and the Costs Appeal carry two different appeal numbers is not a matter of material significance. The defendant’s concern is unfounded.

13.We are satisfied, in the circumstances, that leave to appeal against the Costs Orders is not necessary.

14.Despite the fact that the plaintiff has raised no objection, we find no basis to grant the order sought by the defendant. Her application is therefore dismissed with costs.

Mr Albert Tsang and Mr Victor Luk instructed by Messrs K M Chan & Co for the Respondent.

Mr Jat Sew-Tong SC and Ms Linda Chan instructed by Johnson, Stokes & Master for the Appellant.