Japan Leasing (Hong Kong) Ltd v. Shun Kai Finance Co Ltd and Others

cacv 266/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 266 of 2004

(on appeal from HCA NO. 2027 of 2003)

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BETWEEN

Before: Hon Rogers VP and Yuen JA in Court

Date of Hearing: 17 March 2006

Date of Judgment: 17 March 2006

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal.  The matter before this Court was an appeal from the judge below who had struck out the defence in the case.  The claim in the case is a claim for delivery up of vacant possession of premises and for damages.  The damages were unassessed.

2.This application to appeal to the Court of Final Appeal was put on the basis of section 22(1)(a) of the Court of Final Appeal Ordinance, Cap. 484.  Two matters need to be established there.  First, that it was a final judgment of the Court of Appeal in any civil case or matter and, secondly, that the matter in dispute on the appeal amounts to or is of the value of $1 million or more.

3.Turning to the first question, I have no doubt whatever that, applying the test which is applied in Hong Kong, namely, the applications test, that this was an interlocutory judgment of the Court of Appeal.  Indeed, the matter was heard before two judges and although it was not expressly stated at the time, of course this Court would have considered the jurisdiction to sit as two judges before even commencing the hearing and, in my view, it was a foregone conclusion that this appeal was an interlocutory appeal and the judgment was, therefore, an interlocutory judgment.  In that case, this application does not get off the ground. 

4.But more than that, I do not see that it would come within the second requirement of section 22(1)(a), namely, that the matter in dispute amounts to or is of the value of $1 million or more.  What was in dispute and claimed by the Plaintiff was damages and they were unliquidated damages.  It has been said on many occasions that unliquidated damages do not fall within section 22(1)(a).  There was no counterclaim.  There was simply a defence.

5.These matters having been drawn to the Defendants’ attention prior to this hearing because the Plaintiff has filed skeleton argument, appeared to take counsel by surprise and he indicated that he would wish to make some application under section 22(1)(b) for the question involved a matter of great general or public importance.  But no question has been framed. 

6.Applications to this Court for leave to appeal are very frequently made under both limbs of section 22, if for no other reason than that the Applicant wants to show that he has a meritorious case to go to the Court of Final Appeal and not simply one that scrapes within the boundaries of section 22(1)(a).

7.In my view, this Court should not give any indulgence or extension of time or adjournment to allow some question to be thought up at this late stage.  If the Defendant wishes to make some application to the Court of Final Appeal, so be it, but this Court should not grant any further indulgence in that respect.

8.I would therefore dismiss this application with costs.

Hon Yuen JA:

9.I agree.

Mr Kenneth W H Ng, instructed by Messrs Baker & McKenzie, for the Plaintiff/Respondent

Mr John Swaine, instructed by Messrs Fan, Wong & Tso, for the 2^nd and 3^rd Defendants/Applicants