Chan Siu Lun v. Hui Cho Yee and Another

CACV000124A/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 124
(Civil)

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Coram: Hon Chan, CJHC, Nazareth, V.-P. and Suffiad, J. in Court

Date of Hearing: 25 November 1998

Date of Judgment: 25 November 1998

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J U D G M E N T

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Nazareth, V.-P. (giving the judgment of the Court) :

1. This is an application made by the applicant in person for leave to appeal to the Court of Final Appeal against the judgment of this Court handed down on 12 November 1998. Leave is required under s.22 of the Hong Kong Court of Final Appeal Ordinance. This provides:

"(1) An appeal shall lie to the Court in any civil cause or matter -

(a) as of right, from any final judgment of the Court of Appeal, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; and

(b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal whether final or interlocutory, if. in the opinion of the Court of Appeal or the Court, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court for decision."

So it is quite clear that this Court can only grant leave in two instances. First, if the matter in dispute is of the value of $1,000,000 or more. In that respect it is not very clear here what the amount in dispute could be said to be because the applicant has himself not quantified the amount he claims. His original personal injury claim insofar as it was quantified in his claim before the Court of First Instance could be said to be considerably in excess of $1,000,000 particularly his claim for loss of earnings for a long period.

2. In this Court, we addressed various specific and general claims. The grounds that the applicant now seeks to rely upon seem to indicate that his intended appeal to the Court of Final Appeal is against the whole range of findings below raising those matters again and also challenging the entire judgment of this Court. In a sense, therefore, it could be said that his claim might exceed $1m. However, that is not the way the courts approach claims for unliquidated damages. The authority this Court generally follows is Zuliana and Veira [1994]1 WLR 1149 particularly at p.1155. These unquantified claims are not treated as amounts in dispute simply because that is what might be claimed. As I have said, we have not even had the specific amount mentioned. What then the court does is not to treat that sort of claim as being a matter in dispute of or above the value of $1m, so that there is no automatic right of appeal. But the court will exercise its discretion to grant leave if it is a matter of the utmost probability or virtual certainty that the sum ultimately awarded will be in excess of $1m over what has so far been granted. However, it is very clear here that that is far from being a matter of the utmost probability and even less of virtual certainty. Accordingly, there can be no question of this Court being able properly to exercise its discretion to grant leave upon that basis.

3. I turn then to the second limb of s.22 which is that this Court can grant leave in its discretion if a question involved in the appeal is one of great general or public importance or ought otherwise to be submitted to the Court of Final Appeal for decision. The applicant has helpfully outlined to us the grounds upon which he seeks leave to appeal. These are all related to the particular circumstances of his particular case. None of them, so far as we can see, disclose any question of great general or public importance or that otherwise ought to go to the Court of Final Appeal. The grounds very shortly are these:

(1) A question of the stopping distance of the vehicle and the alleged deficiencies in a related police sketch.

(2) The apportionment of liability on the evidence.

(3) The credibility of the medical evidence, and the validity of the diagnosis of individual doctors.

(4) That the PSLA award is not fair and needs to be readjusted.

(5) Likewise that the assessment of past earnings is not fair and that his post accident salary was lower than previously. He seeks in this instance to rely on the basis of a detailed schedule that he has apparently produced.

(6) That the quantification of future loss of earnings is unfair and he wishes to rely on a professional assessment apparently new.

(7) That in relation to the delay in bringing the proceedings that the Legal Aid Department failed him.

(8) That the costs of future medial treatment award is unfair.

(9) That the award of interest is likewise unfair because it denies him some interest on the basis of wrongly attributing some delay to him.

It can thus be plainly seen that none of these matters, even remotely, can be said to be a matter of great general or public importance. Likewise, we have carefully considered whether there is any other reason why he ought to be granted leave to appeal to the Court of Final Appeal and we can find none.

4. Accordingly we refuse leave.

Representation:

Appellant in person

Mr Herman Poon (M/s T.S. Tong & Co) for 1st Respondent and 2nd Respondent