Akai Holdings Ltd (in Compulsory Liquidation) v. Domine Ko Cheong Wing and Another

cacv 430/2006

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 430 of 2006

(on appeal from HCCL NO. 20 of 2005)

______________________

BETWEEN

______________________

Before : Hon Rogers VP and Le Pichon JA in Court

Date of Hearing : 15 November 2007

Date of Judgment : 15 November 2007

______________________

J U D G M E N T

______________________

Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal, under the provisions of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.

2.It has to be said at the outset that this is an application in an interlocutory matter.  To say the least, this action has barely got going and the events with which it is concerned happened a very long time ago.  It is said that the action is not maintainable.  The matter was decided by the judge below, and it was decided by this Court on the basis that the points raised are arguable and should go to trial.

3.The first point is whether the waiver of a loan constitutes a receipt.  Both courts have decided that that is an arguable point and there can be no reason why the matter should not go to trial.

4.The second question raises a point, as has been pointed out by Mr Yuen, SC, on behalf of the Plaintiff, that is only pleaded out of an abundance of caution and there are other points.  Therefore, it would not, in any event, be determinative of this case.

5.The third question only arises in respect of the second question.

6.I see absolutely no grounds upon which this Court could grant leave to appeal in this case.  If the application is to be pursued, it must be pursued before the Court of Final Appeal itself.

Hon Le Pichon JA:

7.I agree.

Mr Rimsky Yuen SC, instructed by Messrs Johnson, Stokes & Master, for the Plaintiff/Respondent

Mr Barrie Barlow SC, instructed by Messrs Susan Liang & Co., for the 2nd Defendant/Appellant