Billion Star Development Ltd v. Wong Tak Chuen and Others

CACV 49/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 49 OF 2012

(ON APPEAL FROM HCA NO. 708 OF 2011)

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BETWEEN

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J U D G M E N T

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Hon Fok JA (giving the Judgment of the Court):

1.By notice of motion dated 5 April 2013, the 8^th defendant applies for leave to appeal to the Court of Final Appeal against our judgment dated 8 March 2013[1] dismissing his appeal against the judgment of Au J dated 10 February 2012.

2.The application for leave to appeal is made pursuant to s. 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) on the grounds that the appeal involves questions of great general or public importance or that the appeal ought otherwise to be submitted to the Court of Final Appeal for decision.

3.The two questions of great general or public importance said to arise on the appeal are identified in the notice of motion as being:

“1. Having regard to

(a) the sole basis of the Respondent’s application for a quia timet injunction, viz. that unless restrained by an injunction, the defendants (including the Applicant) would continue with their unlawful acts of blocking the Respondent from having access to the Property with irreparable consequential damage to it; and

(b) the finding by Au J (“the Judge”) that the Applicant did not carry out any wrongful acts (to interfere with the Respondent’s right of access to the Property)

whether there was an error of law on the part of the Judge in granting the injunction, and on the part of the Court of Appeal in affirming it, based on a crucial finding that the Applicant had evinced an intention that he would well carry out such wrongful acts, which finding had no evidential basis whatsoever, and which was made as a result of the failure of both the Judge and the Court of Appeal in distinguishing between (i) “the taking up of the cudgels” on behalf of the 7^th Defendant and “championing their cause” during the legal proceedings (which the Applicant did do), and (ii) the taking up of such cudgels on behalf of the 7^th Defendant by the commission of the wrongful acts relied upon by the Respondent in seeking the injunction (which the Applicant did not do, and was found by the Judge not to have done);

2. In failing to draw the vital distinction in relation to the Applicant’s “taking up the cudgels” set out in Ground 1 above, and by holding against the Applicant for (i) having at the commencement of these proceedings voluntarily identified himself as the 7^th Defendant, and (ii) having participated with other people in a peaceful rally organised by the 1^st to 6^th Defendants against the Respondent’s development of the Property, whether the Court of Appeal had disregarded and/or failed to give due weight to and/or violated the Applicant’s constitutional right to access to the courts under Article 35 of the Basic Law (“BL”); and the Applicant’s constitutional right of freedom of speech, of assembly, of procession and of demonstration under Article 27 of the BL.”

4.We are not persuaded that the first question is one of great general or public importance.  There is no suggestion that this court applied the wrong principles of law in affirming the Judge’s grant of the injunction against the 8^th defendant.  Instead, the complaint is that the Judge and this court erred in the finding of fact on which the injunction was based, namely that the 8^th defendant evinced an intention to carry out wrongful acts against the plaintiff.  Even if that finding was wrong, which we do not accept, it would not make the question one of great general or public importance.

5.In any event, contrary to the premise within the question, the distinction which it is suggested the Judge and this court failed to make and which is said therefore to have led to the mistake of fact was addressed by this court in §§40 to 42 of our judgment.

6.Moreover, the finding of fact in question is a concurrent finding of fact of both the Judge below and this court so that the 8^th defendant faces the difficulty of demonstrating special circumstances to justify the reversal of that finding by the Court of Final Appeal.[2]  However, no such circumstances have been identified by the 8^th defendant in support of this application for leave.

7.As to the second question, we are similarly not persuaded that this raises a question of great general or public importance. The mechanism by which he was joined in the action was similar to the already existing procedure under RHC O.15 r.12 and he was given a full opportunity to defend himself by way of pleading, affirmation evidence and submissions to the court at the hearing before the Judge and in this court.  In short, the 8^th defendant was not denied access to the courts and the argument that his right of access to the court was denied or not given weight is without substance.

8.There is also no substance, in our view, in the suggestion that liability against him was determined on the basis of his being found “guilty by association” as contended in the submissions made on his behalf on this application.  The injunction against him was granted and affirmed on the basis of the Judge’s and this court’s finding of fact that he evinced an intention to carry out wrongful acts against the plaintiff.

9.Furthermore, the argument raised by the second question is not the same argument as the constitutional right point argued before the Judge or this court.  It appears to be an entirely new point not taken below or before this court and so faces the usual hurdle placed in the way of such points sought to be raised for the first time in the Court of Final Appeal.[3]

10.We are therefore not satisfied that either of the questions identified in the notice of motion constitutes a question of great general or public importance that would engage the discretion to grant leave under s. 22(1)(b) of the Ordinance.

11.Finally, as to the “or otherwise” ground, leave under this limb of s. 22(1)(b) is an exceptional course and we see no exceptional basis on which to grant leave in the present case.  It is contended on behalf of the 8^th defendant that this court adopted a fundamentally wrong approach.  However, since the allegedly wrong approach consists of an argument based on articles 27 and 35 of the Basic Law that was not pursued before the Judge below or in this court, we see no justification for this contention.

12.We therefore dismiss the notice of motion with costs to the plaintiff.

Mr Benjamin Yu SC & Mr Elliot Fung, instructed by Mayer Brown JSM, for the Plaintiff (Respondent)

Mr Martin Lee SC, Ms Jocelyn Leung and Mr Richard Yip, instructed by JCC Cheung and Co., for the 8^th Defendant (Applicant)