Lai Kam on and Another v. Pacrim International Capital Inc.

CACV 366/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 366 OF 2007

(ON APPEAL FROM HCA NO. 1250 OF 2006)

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BETWEEN

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Before: Hon Tang VP, Cheung JA and Chu J in 

Date of Hearing: 12 February 2009

Date of Decision: 19 February 2009

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D E C I S I O N

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Hon Chu J (giving the decision of the Court):

1.This is the application by the 3^rd and 4^th plaintiffs for leave to appeal out of time to the Court of Final Appeal against the judgment of this Court given on 4 June 2008. 

2.In the action below, there were five plaintiffs. The claims of the plaintiffs arose out of their respective Transfer Agreement and the notice of redemption dated 27 October 2003.  Each of the plaintiffs claimed the payment of CAD 60,000, dividends and interest relying on clause 4 of Schedule B to the Transfer Agreement.  Yam J after trial entered judgment for each of them for the sum of CAD 60,000 together with interests from the date of the claim until the date of the judgment at 10% per annum.  He also awarded costs to all the plaintiffs in the sum of $180,000. 

3.The defendant appealed against the judgment.  There was no cross-appeal from the plaintiffs in respect of those parts of their claims that had not been allowed, including the claims for dividends. We allowed the defendant’s appeal, set aside the judgment and dismissed the plaintiffs’ claims with costs to be taxed if not agreed.

4.By two Notices of Motion filed on 13 and 26 June 2008, the 1^st and 2^nd plaintiffs applied for leave to appeal against our judgment to the Court of Final Appeal.  By our Decision handed down on 4 November 2008, we refused the application.  In respect of the 1^st and 2^nd plaintiffs’ submission that they were entitled to appeal as of right under section 22(1)(a) of Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”), we held that they were not so entitled as the matter in dispute between the 1^st and 2^nd plaintiffs and the defendant did not amount to nor was of the value of HK$1,000,000.

5.By Notice of Motion filed on 1 December 2008, the 3^rd and 4^th plaintiffs, acting by Mr Chak Kak, the 1^st plaintiff, applied for leave to appeal to the Court of Final Appeal out of time. The affirmations in support of the applications were also made by Mr Chak on their behalf, with the letters of authorization from the 3^rd and 4^th plaintiffs exhibited thereto.  At the hearing, Mr Chak also appeared on behalf of the 3^rd plaintiff.

6.Section 24(2) of the Ordinance provides that an application to the Court of Appeal for leave to appeal must be brought within 28 days from the date of the judgment appealed against. Under section 24(5) and (6), the Court of Appeal may on such terms as it considers appropriate, extend the time for making the leave application and may do so even though the application for extension is not made until after the expiration of the 28-day period.      

7.The 3^rd and 4^th plaintiffs’ leave applications are seriously out of time.  Further, the 4^th plaintiff had previously on 16 October 2008 made an affirmation confirming he did not wish to appeal.  The affirmation also exhibited a letter of authorization from the 3^rd plaintiff, in which he also stated that he would not appeal.

8.In their Notice of Motion, the delay was explained on the basis that they were concerned with the costs involved and feared they might become bankrupt if they were to fail in the appeal to the Court of Final Appeal.  It was also said that the 3^rd and 4^th plaintiffs were under the belief that the amount of the 1^st and 2^nd plaintiffs’ claims was of the value of HK$1,000,000, having regard to the exchange rate of CAD at the time of Yam J’s judgment, and that the 1^st and 2^nd plaintiffs would therefore be entitled to appeal as of right to the Court of Final Appeal.

9.We are not persuaded that the explanations afford good reasons for the delay, which is substantial.  Further, the amount of the matter in dispute between the 3^rd and 4^th plaintiffs and the defendant, namely, CAD 120,000, is substantially less than HK1,000,000.  Mr Chak had referred to the claims for dividends, but since there was no cross-appeal on them, they do not form part of the matter in dispute.  As to the amount of the 1^st and 2^nd plaintiffs’ claims, it cannot be taken into account for the purpose of the present application.  The 3^rd and 4^th plaintiffs do not come within section 22(1)(a) of the Ordinance and are not entitled to appeal as of right.

10.We understand that the 1^st and 2^nd plaintiffs have applied to the Court of Final Appeal for leave to appeal and the matter is pending.  As pointed out by Mr Law for the defendant, in the event the 3^rd and 4th plaintiffs were to apply to the Court of Final Appeal for leave to appeal, the Appeals Committee may consider consolidating their applications with those of the 1^st and 2^nd plaintiffs. That, however, cannot advance the 3^rd and 4^th plaintiffs’ position in the present application.

11.For reasons indicated in our Decision of 4 November 2008, we also do not consider that any question of great general or public importance is involved in the 3^rd and 4^th plaintiffs’ intended appeal.

12.We are therefore not satisfied that we should exercise our discretion to extend the time for applying for leave to appeal.  Accordingly we dismiss the applications of the 3^rd and 4^th plaintiffs with cost to be paid by the 3^rd and 4^th plaintiffs to the defendant, to be taxed if not agreed.

The 3^rd plaintiff, in person, absent, represented by the 1^st Plaintiff (Mr Chak Kak).

The 4^th plaintiff, in person, present.

Mr Lawrence T. H. Law, instructed by Messrs Robertsons, for the defendant.