Tsui Po Hing and Another v. Sk Kaken Co., Ltd and Another

CACV 101/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 101 OF 2007

(ON APPEAL FROM HCCL NO. 42 OF 2004)

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Before: Hon Tang VP, Cheung JA and Yuen JA in Court

Date of Hearing: 23 April 2010

Date of Decision : 23 April 2010

Date of Reasons for Decision : 29 April 2010

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REASONS FOR DECISION

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Hon Tang VP (giving the reasons for decision of the Court):

1.The plaintiffs were the sole agent of the 1^st defendant’s product in Shanghai.  The major issue at trial was whether the agency was for 4 years (3+1) or 50 years.  Another area of dispute is whether the agency agreement was made with the 1^st defendant, or the 1^st defendant’s wholly-owned subsidiary in Hong Kong.

2.The plaintiffs claimed that the agency agreement was made partly in writing and partly orally, and on the basis that the agency agreement was for 50 years and that the defendants were guilty of certain repudiatory breaches the plaintiffs claimed substantial damages.

3.After trial, where the plaintiffs were represented by leading counsel, Stone J dismissed the plaintiffs’ claim.  He held that the plaintiffs were the 2^nd defendant’s agent and that the agency was for a maximum of 4 years only.  The learned judge also rejected the plaintiffs’ case that there had been any repudiatory breach by any of the defendants.  The plaintiffs’ appeal, where they acted in person, was dismissed by us on 27 November 2009.

4.The plaintiffs applied for leave to appeal to the Court of Final Appeal.

5.The plaintiffs contended that they were entitled to appeal as of right under section 22 (1)(a) of the Hong Kong Court of Final Appeal Ordinance.  That is not correct.  It is clear that the claim was not a liquidated claim.  Nor does it fall within the second limb, namely, that it involves some claim or question to or respecting property or some civil right amounting to or of the value of $1 million or more.  China Field Ltd v Appeal Tribunal (Buildings) (No. 1) (2009) 12 HKCFAR 68.

6.The plaintiffs also relied on section 22(1)(b).  However, Stone J’s decision turned on findings of fact.  No question of great general or public importance is involved.

7.The proposed appeal seeks to challenge concurrent findings of fact.  It is not the practice of the Court of Final Appeal to entertain appeals from concurrent findings of fact.  Wu Yee Pak v Un Fong Leung and Ors (2004) 7 HKCFAR 498 at 503D-E per Chan PJ.

8.Mr Tsui submitted that Stone J had failed to exercise his discretion under O. 38 r. 2 in respect of the admission of the witness statements of Mr Eguchi, who was unavailable as a witness at trial.  The complaint is that O. 38 r. 2 conferred on the learned judge a discretion which Stone J had not exercised.  It is said that the Court of Final Appeal should give guidance on how the discretion should be exercised.  We have dealt with the non-admission of Mr Eguchi’s evidence in paras. 69-71 of our judgment.  There is nothing in this point. 

9.For the above reasons, we refused leave to appeal.  We also ordered the applicants to pay the costs of the application.  However, since it was obvious that the application could not succeed, the defendants’ costs should be restricted to one counsel only.

The Plaintiffs, in person, represented by the 1^st plaintiff Tsui Po Hing.

Mr. Kenneth C. L. Chan, Mr. Raymond W. N. Tsui and Mr. Freddy Chu, instructed by Messrs T. C. Lau & Co., for the 1^st and 2^nd Defendants