Ho Yuen Ki Winnie v. Ho Hung Sun Stanley and Another

cacv 329/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 329 of 2007

(on appeal from HCA NO. 1097 of 2006)

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BETWEEN

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Before: Hon Rogers VP and Le Pichon JA in Court

Date of Hearing: 26 September 2008

Date of Judgment: 26 September 2008

J U D G M E N T

Hon Rogers VP:

1.This is an application for leave to go to the Court of Final Appeal.  No doubt there are sufficient assets around for the matter to be taken there but that does not give rise to questions of great general or public importance. 

2.The first question:  Mr Shieh quite candidly said in the course of argument this morning that this court had expressed the law correctly, but applied it wrongly.  That does not raise a question of great general or public importance.  That is just a question as to whether, on the basis that we did not go wrong on the law, we went wrong on the application, which is quite different.  Cases are not authority for the facts which they decide.  They are only authority for the propositions of law.  So as far as I am concerned, there is nothing in question 1.

3.Question 2 is simply a rehash of the arguments which were before this court and before the judge below.  The matter is really an assessment of the evidence and a matter of the exercise of the court's discretion.  I cannot see that these are questions of great general or public importance.

Hon Le Pichon JA:

4.I agree.

(Discussion re costs)

Hon Rogers VP:

5.On the basis of the authority of Leung Ho Sing & Others v Shung Yiu Tung, it does seem appropriate that if this court considers that there is no proper ground for applying for a case to go to the Court of Final Appeal on the basis of great general or public importance, this court should express that view clearly in the award of costs. 

6.In those circumstances, we do so and we make an order for an indemnity cost to be paid forthwith. 

Mr Martin Lee SC and Mr Erik Shum, instructed by Messrs Ho, Tse, Wai & Partners, for the Plaintiff/Respondent

Mr Paul Shieh SC, instructed by Messrs Herbert Smith, for the 1st and 2nd Defendants/Applicants