Duan Qi Gui v. Upper Like Investments Ltd and Others

CACV 320/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 320 OF 2007

(ON APPEAL FROM HCA NO. 1004 OF 2005)

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BETWEEN

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Before: Hon Tang VP and Lam J in Court

Date of Hearing: 11 September 2008

Date of Decision: 11 September 2008

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DECISION

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Hon Tang VP :

1.I would not grant leave to appeal.  The real question in this case is whether the plaintiff had unreasonably allowed the Mainland limitation period to expire.  No question of great general or public importance is involved.  The defendants’ complaint is not that we have applied the wrong test, but that our decision is wrong.

2.As for the question, what evidence is required to be adduced by the plaintiff to discharge her burden of proof, we have said in our judgment that what evidence should be required must depend on the circumstances.  So it is fact sensitive.  In this case, the facts are highly unusual, the Mainland limitation period of two years expired in May 2001, during which the plaintiff was detained from 29 July 1999 in respect of charges in relation to which she was eventually on 5 March 2001 sentenced to death, and the death sentence was not reversed until 28 August 2002.

3.This is a case where both the learned judge and this court have exercised their discretion against a stay.  So, in the circumstances, I do not think this is a suitable case for leave on the “or otherwise” basis either.

Hon Lam J:

4.I agree that this is not a case where leave can be granted in accordance with section 22 of Hong Kong Court of Final Appeal Ordinance, Cap. 484.  I therefore agree that the application has to be dismissed.

Hon Tang VP:

5.Application for leave is dismissed with costs.

Mr. Jat Sew Tong, SC and Mr. Victor Dawes, instructed by Messrs Arculli Fong & Ng, for the 1^st, 4^th and 5^thDefendants.

Mr. Abraham Chan, instructed by Messrs Stevenson, Wong & Co., for the Plaintiff.