HKSAR v. Global Merchant Funding Ltd

HCMA 716/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 716 OF 2013

(ON APPEAL FROM ESS 43438/2011)

------------------------

------------------------

------------------------

J U D G M E N T

------------------------

1.This is an application to transfer an appeal from the Magistrates Court by way of case stated to the Court of Appeal for hearing pursuant to section 118(1)(d) of the Magistrates Ordinance.

2.The case is listed before me to be heard later this month.  There is no need for me to say what the nature of the case is; it’s all set out in the papers.  Basically, it is a point about whether a certain commercial structure is a loan or not.  It is a matter of some public interest.  There is a substantial point of law involved and, basically, both sides would agree that it is suitable for the Court of Appeal.

3.The objection to the transfer made by the appellant is that it will occasion more delay.  I have weighed that in the balance and I hope that can be met by some input into the listing of the case so that it can be listed with due dispatch and I hope that meets the objections.

4.But I do, in fact, on the merits of the application believe that it is right that the Court of Appeal hear this with a full bench, with commercial experience perhaps from one or more of the judges there.  It is a suitable case for that to happen.

5.Therefore I will make the order of transfer and I should just say I cannot make any promises, but I will use my best endeavours with the listing and with the Vice President of the criminal side of the Court of Appeal to have the matter brought on because of the public dimension that I have heard about today as soon as possible.

“COURT: Is there anything else you want me to deal with today?

MR SMITH: Well, there’s the question of costs, my Lord, because obviously this application could have been made a lot earlier. I’d ask your Lordship to take that into account and on that basis I’d ask for the costs of today.

If your Lordship is not with me on that then I’d ask for the costs to be in the cause of the appeal, but I would actually urge the former, because it could have been made -- if the formal application had been made to us, we could have had the whole matter sorted out or a hearing brought on much earlier. So I would ask for the costs and, if not, then reserved . . .

COURT: I think the right order is that the costs be reserved for the Court of Appeal when they hear it.”

Mr Clifford Smith SC and Mr Athony Chau SPP, of the Department of Justice, for the appellant

Mr Derek Chan, instructed by Tanner De Witt, for the respondent