Wing Ming Garment Factory Ltd v. The Incorporated Owners of Wing Ming Industrial Centre and Another

FAMV No. 40 of 2009

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 40 OF 2009 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 27 OF 2008)

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Ribeiro PJ

Date of Hearing: 16 September 2009

Date of Determination: 16 September 2009

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.This determination should be read together with the Court of Appeal’s Reasons for Judgment handed down on 19 June 2009.  For the reasons contained therein, the Court of Appeal had, on 17 June 2009, granted leave to appeal to the Court of Final Appeal only in respect of what are referred to therein as “the issues relating to management fees”.

2.The plaintiff, having been granted leave to appeal in respect of management fees pertaining to it, now asks this Committee for leave to appeal which would extend to what are referred to in the Court of Appeal’s Reasons for Judgment as “the pipe issue” and “the injunction issue”.  So the plaintiff is asking us for leave to appeal which is more extensive than that granted to it by the Court of Appeal.  On the basis explained in the Committee’s determination in Cathay Pacific Airways Ltd v. Wong Sau Lai (2006) 9 HKCFAR 45, the plaintiff must therefore be taken to be treating the Court of Appeal’s decision on the question of leave to appeal simply as a complete refusal. 

3.Looking at the matter afresh, we agree with the Court of Appeal that the plaintiff is entitled as of right to bring an appeal in respect of management fees pertaining to it.  So we grant the plaintiff leave to appeal in respect of management fees pertaining to it.

4.What about the pipe issue and the injunction issue?  We say at once that on each of these two issues, we agree with the Court of Appeal that the plaintiff is not entitled to leave to appeal as of right and ought not to be granted leave to appeal as a matter of discretion.  In holding that the plaintiff is not entitled to leave to appeal as of right on either of these two issues, the Court of Appeal correctly applied to the facts of this case the law which is to be found in the Appeal Committee’s determination in China Field Ltd v. Appeal Tribunal (Buildings) (No.1) [2009] 2 HKLRD 135. 

5.The plaintiff’s argument is that a claim to a right of exclusive possession necessarily underlies its claim for damages for trespass and that it is the value of that underlying claim that should be taken for the purposes of qualifying the proposed appeal as one as of right.  That is a proposition which was rejected in China Field where the Appeal Committee stressed that s.22(1)(a) of the Court of Final Appeal’s statute focuses on the value of the claim which is the subject-matter of the appeal – here the claim for damages for trespass – and not on any property or right which has some connection with that claim.  And, as the Appeal Committee also emphasised, the order made on disposing of the proposed appeal – here an order awarding or refusing damages for trespass – must immediately confer a financial benefit quantified in the relevant amount.  That condition is plainly not met in the present case.

6.As to discretionary leave on the basis of a question of great general or public importance, the decisions of the courts below are case specific and do not turn on any such question.  And as to discretionary leave on the “or otherwise” basis, the plaintiff is, quite apart from anything else, confronted with concurrent factual findings adverse to it which, in our view, it has no reasonable prospects of having overturned.  These findings include one to the effect that the pipe has not resulted in any loss to the plaintiff.

7.Accordingly, we do not grant the plaintiff leave to appeal in respect of either the pipe issue or the injunction issue.  In the result, the plaintiff has leave to appeal only in respect of management fees pertaining to it.

8.The third party is not before this Committee.  It is apparently content with – and retains – the leave to appeal granted to it by the Court of Appeal, being leave to appeal in respect of management fees pertaining to it.

Mr Edward Chan SC and Ms Nancy Ngai (instructed by Messrs Huen Wong & Co.) for the plaintiff/applicant

Mr Horace Wong SC and Mr Paul Mak (instructed by Messrs Hampton, Winter and Glynn) for the 1st defendant/1st respondent

Mr Godwin Ng (instructed by Messrs Wong & Co.) for the 2nd defendant/2nd respondent