IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 79 OF 2011
(ON APPEAL FROM HCCT NO. 41 OF 2010)
Before: Hon Tang VP, Fok JA and Lam J in Court
Date of Hearing: 22 March 2012
Date of Judgment: 22 March 2012
Date of Reasons for Judgment: 29 March 2012
REASONS FOR JUDGMENT
Hon Tang VP (giving the reasons for judgment of the Court):
1. This is the Respondents’ application for leave to appeal to the Court of Final Appeal against our judgment which restored the orderof Saunders J, granting leave to enforce the arbitral award dated 3 June 2010, made after arbitration in the Mainland.
2. The application is put on three bases. First, it is said leave should be granted as of right. Secondly, leave should be grantedbecause questions of great general or public importance are involved. Thirdly, on the “or otherwise” basis.
3. It is clear that the Respondents are not entitled to leave as of right, because it does not satisfy the immediacy requirement. Thatrequirement has been explained by the Appeal Committee in Chinachem Charitable Foundation Ltd v Chan Chun Chuen and Anor FAMV 20/2011 (28 October 2011) in these words:
4. Mr Patrick Fung, SC (appearing for the Respondents) submitted that this requirement is satisfied because as a result of our decision,the Respondents immediately suffered a detriment namely the enforceability of the arbitral award. But it is the normal event oflitigation that the winner gains a benefit and loser suffers a detriment by the result. But as the citation from the judgment ofRibeiro PJ shows, that is not sufficient.
5. As for questions of great general or public importance, the Respondents rely on the following:
6. With respect, as our judgment shows, we have followed well-established authorities on the subject including Locabail (UK) Ltd v Bayfield Properties Ltd  QB 451, as well as Hebei Import & Export Corp v Polytek Engineering Co Ltd (1999) 2 HKCFAR 111.
7. Moreover, as Mr Edward Chan, SC (for the Applicants) pointed out, we allowed the appeal, also on the basis that we disagreed withthe learned judge’s conclusion that there was apparent bias.
8. Leave is rarely granted by this court on the “or otherwise” basis.
9. Mr Fung submitted that insofar as we have left the learned judge’s findings of fact undisturbed, but disagreed with him on his conclusion,that gives rise to a point of law, namely, whether we were entitled to do, for which leave to appeal should be granted. I have alsotaken note of Mr Fung’s submission about the potential value of the arbitral award. These are matters which the Court of Final Appealwill take into account if and when the Respondents apply for leave to appeal from them. But they are not such that it would be appropriatefor us to grant leave on the “or otherwise” basis.
10. For the above reasons, we have refused leave to appeal with costs.
Mr. Patrick Fung, SC and Mr. Calvin Cheuk, instructed by Messrs Li & Partners, for the Respondents
Mr. Edward Chan, SC, Mr. Laurence Li & Mr. Eric Chow, instructed by Messrs C.L. Chow & Macksion Chan, for the Applicants