Rank Profit Industries Ltd v. Secretary for Justice

CACV 125/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 125 OF 2007

(ON APPEAL FROM HCA NO. 1076 OF 2004)

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BETWEEN

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Before: Hon Tang VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 8 January 2009

Date of Decision: 8 January 2009

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D E C I S I O N

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Hon Tang VP:

1.This appeal was heard together with the public law appeal (CACV 94/2007) and this morning we have refused leave to appeal in relation to the public law proceedings.  The plaintiff seeks leave to appeal in this action to the Court of Final Appeal. 

2.It is quite clear that we are concerned here with an interlocutory judgment.  Both this court and the Court of First Instance have struck out the plaintiff’s claim on the basis that it was not maintainable. 

3.The essence of Mr Yim’s submission before us is not that we have applied the wrong test, but that we have applied the correct test wrongly.  That is not a sufficient reason for leave to be given in the circumstances of this case.  It is true that a lot of money is involved in this appeal, but again whilst that is highly relevant to the exercise of our discretion, that is not a sufficient reason for leave to be given.  In the circumstances of this case, I do not believe that it will be appropriate for leave to be given since we are clearly of the view that the claim is not maintainable.  If leave is to be granted, it should be granted by the Court of Final Appeal, so I would also dismiss this application.

Hon Le Pichon JA:

4.I agree.

Hon Sakhrani J:

5.I also agree.

Hon Tang VP:

6.Leave is refused with costs.

Mr. Valentine Yim and Mr. Aidan Tam, instructed by Messrs. Wong, Hui & Co., for the Plaintiff

Mr. Benjamin Yu, SC, instructed by Department of Justice, for the Defendant