Harvest Good Development Ltd v. Secretary for Justice and Others

cacv 10/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 10 of 2007

(on appeal from HCAL NO. 32 of 2006)

______________________

BETWEEN

______________________

Before : Hon Rogers VP and A Cheung J in Court

Date of Hearing : 20 December 2007

Date of Judgment: 20 December 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.  What is quite clear is that the applicant wishes to argue the merits of its underlying case.  It is not to be denied that the questions raised in the underlying case are matters of great general and public importance.  They relate to the application of the Limitation Ordinance to questions of trespassers in the New Territories and as to whether or not there is a deprivation of rights.  However, that was not the point of the decision of this court which it is now sought to appeal.  This court said that this matter could not be raised in these proceedings because there had already been previous litigation and if the matter were to be raised, it should have been raised in the previous litigation. 

2.Mr Koo has tried to argue that it was impossible for the applicant to have raised that in the previous litigation, but I regret that I do not see that that is so at all.  It seems to me to follow that it must have been quite obvious that if the applicant were to lose the arguments which were raised in the previous litigation, these matters might arise and, unfortunately, our rules are that one has to raise all the points in litigation at the first opportunity, one cannot have multiple litigation and that was really the decision of this court on this case. 

3.In those circumstances, I consider it would be quite wrong for this court to give leave to appeal to the Court of Final Appeal.  If the Court of Final Appeal wishes to grant leave, so be it. 

Hon A Cheung J:

4.I agree.

Hon Rogers VP:

5.The 2nd and 3rd respondents shall have their costs.  There will be an order for Legal Aid taxation.

Mr Ernest Koo, instructed by Messrs Christine M Koo & Ip, for the Applicant

Mr William Marshall SC, instructed by Messrs Haldanes, for the 2nd and 3rd Respondents