Gary William Moore v. The Royal Hong Kong Jockey Club

CACV000123B/1989

BETWEEN

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Coram: Fuad, V.-P., Macdougall, J.A. & Ryan, J.

Date of hearing: 26 April 1990

Date of judgment: 26 April 1990

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JUDGMENT

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Fuad, V.-P.:

1. In May last year, in an action heard by Jones, J., the plaintiff was Mr. Gary Moore and the defendant The Royal Hong Kong Jockey Club. On 25th May Jones, J. gave his judgment dismissing Mr. Moore's action and by his decision refused the relief that had been sought by Mr. Moore comprising a number of declarations and injunctions that related to the true interpretation of a written immunity dated 10th March 1988 which the Jockey Club had given to Mr. Moore, as well as the question whether the Jockey Club were entitled to make use of a statement made by him on 5th May 1986 to one of the officers of the Independent Commission Against Corruption ("ICAC").

2. Mr. Moore appealed to this Court against Jones J's decision, and in the judgment handed down on 22nd March this year this Court dismissed the appeal by an unanimous decision. Mr. Moore now seeks leave to appeal to Her Majesty in Council.

3. The Order in Council which regulates appeals from this Court to Her Majesty in Council states in rule 2 as follows:

"2. Subject to the provisions of these Rules, an Appeal shall lie -

4. It is submitted on behalf of Mr. Moore that the issues which arise give Mr. Moore an appeal as of right under rule 2 (a). To those who are not familiar with the practice in these matters it may seem strange that leave has to be sought from this Court where an appeal is given as of right in certain circumstances, but it has been settled for a long time that even where an appeal lies as of right, an application for leave to appeal must first be made to the Court from which it is intended to appeal and that that Court must form a judgment as to whether or not the appeal lies as of right.

5. Mr. Huggins, for Mr. Moore, submits that two civil rights are involved in the issues which arise in this litigation. The first civil right is a contractual right under the immunity agreement of 10th March 1988 to absolute immunity with respect to contraventions of the Rules of Racing and the second civil right is Mr. Moore's right to the protection from use by the Jockey Club of information imparted by him in confidence to a third party and thereafter acquired 'by the Jockey Club with knowledge of the confidence.

6. Mr. Huggins recognises that a value must be put upon those rights for the purposes of rule 2(a). He submits that a breach of the first right by the Jockey Club in holding disciplinary proceedings in respect of such contraventions will result inevitably in the loss to Mr. Moore of earnings to which he is presently entitled exceeding the sum provided for in rule 2(a), plus future earnings and prize monies, as well as the imposition of fines by the Jockey Club of more than $500,000. A breach of the second right, that is to say the right to prevent the use of the confidential information by the Jockey Club in disciplinary proceedings, would result in both loss of earning and fines.

7. Mr. Huggins argues that in this case the financial effects and consequences of the Jockey Club's alleged breaches of contract and of the duty of confidentiality are both direct and immediate because fir. Moore's earnings and livelihood are directly dependent upon the continuation of the absolute immunity and the protection from disclosure of the confidential statement.

8. Mr. Huggins submitted that the value of the contractual right to absolute immunity and/or the right of confidence in respect of the statement made to the ICAC must be measured by the financial consequences to him of being deprived of those rights.

9. As to the contention that the loss to Mr. Moore is not merely a possible and indirect result that may follow from the decision reached by this Court on 22nd March but is a certain, direct and immediate loss which would inevitably follow from that decision, Mr. Huggins pointed to evidence in the affidavits before us which indicated that all 71 charges in respect of which the Jockey Club had expressed their intention to proceed against Mr. Moore were based on his own statement. Mr. Huggins felt able to tell this Court from the Bar that those statements were voluntary and true. Moreover, the precedents referred to in the affidavits indicated that disqualification was virtually inevitable and that worldwide reciprocal arrangements would make it impossible for Mr. Moore to ride or train under the auspices of any respectable Jockey Club in the world.

10. Mr. Huggins added that the affidavits showed that Mr. Moore would lose his present Italian retainer and the benefit of free accommodation and the use of a motor car. His total loss of prospective earnings and benefits would be in the region of $800,000, quite apart from anything he  might receive in prize money. Moreover there would be fines which it is confidently asserted would exceed $500,000.

11. Mr. Huggins asked us to look at the practicalities of the situation. He argued that the losses that would inevitably result to Mr. Moore flowed directly and naturally from the Jockey Club's alleged breach of contract; they were of such a kind as might reasonably be supposed to have been in the contemplation of both the parties as the probable result of any breach of the immunity agreement of 10th March 1988. All these losses must have been within the parties' contemplation as not unlikely results of the Jockey Club's breach. These submissions were based on the classic statement of the rule relating to remoteness of damage in Chitty on Contracts, 26th Edition, Vol.1, paras. 1792-1793.

12. With very great respect to these carefully prepared, formulated and presented arguments, for my part I am unable to accept them. It seems to me that if Mr. Moore does indeed have an appeal as of right from this Court to Her Majesty in Council under the Order in Council, he must bring himself within this part of rule 2(a): the appeal must involve directly or indirectly some question respecting a civil right amounting to or of the value of $500,000 or upwards. The expression "civil right" is a very wide one and there can be no doubt that the contractual rights enshrined in the immunity letter in question amount to a civil right within the meaning of rule 2(a), but it seems to me that the wording of the rule makes it clear that Mr. Moore must show that by the judgment he seeks to have set aside, he has been prejudiced in relation to the rights he puts forward to a degree which amounts to or may be estimated as involving $500,000 or more. The civil right (the contractual right not to be proceeded against by the Jockey Club which Mr. Moore seeks to continue to assert) cannot, in my judgment, be measured in money terms.

13. On the material before us, I do not think it would be right to hold that Mr. Moore will inevitably be found guilty of the disciplinary charges pending against him, or that any such finding will result in losses and monetary penalties of a level which will satisfy the amount mentioned in the Order in Council. I do not want to say too much about this but I think it would be quite wrong to approach the matter in this way. However likely it may be that if the proceedings are allowed to go forward Mr. Moore's worst fears will be realised, even if it could be said that the level of the penalties he fears are virtually certain, in my judgment, this would still not satisfy rule 2(a) because, as I have mentioned before, the civil right sought to be maintained is merely the right not to be proceeded against in respect of those charges. The threatened proceedings before the Jockey Club will be different proceedings from the proceedings instituted before the Courts of Hong Kong and sought to be continued in the Judicial Committee.

14. I feel bound, therefore, to declare my opinion that Mr. Moore has no appeal as of right from this Court's decision in terms of rule 2(a) of the Order in Council.

15. It will be recalled that rule 2(b) of the Order in Council confers upon this Court a discretion in any case to give leave to an intending appellant to appeal from any other judgment if the Court is of the opinion that the question involved is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to Her Majesty in Council for decision. Mr. Huggins, on behalf of Mr. Moore, does not seek to persuade this Court today that the question involved in the appeal is one of great general or public importance but he relies on the expression "or otherwise" which occurs in rule 2(b). It is common ground for the purposes of this application that the decision of the Full Court in Hui Shiu Wing v. Cheung Yuk Lin [1968] HKLR 176 correctly sets out the way in which the words "or otherwise" in the rule should be interpreted and applied. That Court held that the ejusdem generis rule did not apply and that the expression "or otherwise" contemplated cases which could not reasonably be described as being of great general or public importance. However, the Court held that the circumstances leading to the exercise of that discretion should be exceptional in the sense of not involving "ordinary everyday questions" or, it was said, the case should present some unusual feature either of law or of fact.

16. I hope Mr. Huggins will forgive me if I do not recite and discuss the unusual features of law and fact that he urged before us. In my view there is nothing in the issues that were canvassed before us and which are sought to be taken before Her Majesty in Council to justify exercising our discretion under the wider power given by the expression "or otherwise" in rule 2(b). All this Court did was to decide what it considered to be the true construction of a particular form of immunity given by an organisation with disciplinary powers over the person to whom it was offered.

17. In my judgment, it would be quite wrong to pray in aid the words "or otherwise" in the circumstances of the instant case. I can well understand Mr. Moore's anxiety about the possible consequences of our March decision, but we have to apply the Order in Council, certainly not grudgingly, but without stretching the true meaning of the words used.

18. For the reasons I have given I would refuse the application.

Macdougall, J.A.:

19. I agree with my Lord that the applicant does not come within either of the two limbs of rule 2 of the Order in Council. I, therefore, would refuse this application for leave to appeal.

Ryan, J.:

20. I also agree that the application for leave to appeal ought to be refused and I have nothing further to add.

Representation:

Mr. Adrian Huggins (Herbert Smith) for the Applicant

Mr. Charles Ching, Q.C. and (Johnson, Stokes & Master) for the Respondent