TSUI KIN CHUNG v. THE REGISTRAR OF THE COURT OF FINAL APPEAL AND ANOTHER

CACV 188/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2016

(ON APPEAL FROM HCAL NO 121 of 2016)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 8 November 2016, this Court (Lam VP and Kwan JA) ordered that this appeal be stayed pending the determination by the Court of Final Appeal in Incorporated Owners of Po hang Building v Sam Woo Marine Works Ltd which shall be heard early next year.

2.  We explained the reasons for such stay in our judgment of 8 November 2016.  It is an exercise of case management discretion by this Court.  Though the appeal is stayed, we have not determined the appeal one way or another.  We gave the appellant liberty to restore the appeal within 14 days after the handing down of the decision by the Court of Final Appeal in Sam Woo Marine Works.

3.  On 18 November 2016, the appellant made an application for leave to appeal to the Court of Final Appeal in respect of our decision of 8 November 2016.  He did not set out any questions which he would ask the Court of Final Appeal to consider in the Notice of Motion. 

4.  Instead he set out the following questions in his affidavit of 18 November 2016, presumably putting them forward as questions which he would ask the Court of Final Appeal to determine,

“ (1)   Whether, the Registrar of CFA may decline the filing of Notice of Motion under current legal framework? (“Question 1”);

(2)   Is s11AB of the Lands Tribunal Ordinance, Cap 17; s63B of the District Court Ordinance, Cap 336 and s14AB of the High Court Ordinance, Cap 4 (“the Finality Provisions”)? (“Question 2”)

(3)   Does the CFA have jurisdiction to entertain an appeal from a judgment of the CA refusing leave to appeal to the CA itself (“Refusal of Leave”)? (“Question 3”)

(4)   Whether the CFA Registry may decline the filing of application for leave to appeal to the CFA under section 23(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484? (“Question 4”)

(5)   Does the Applicant need to apply for leave to appeal to the CFA first and obtain such leave from the CA? (“Question 5”)  ”

5.   Some of these questions are not properly framed: see Questions 2 and 5.  As for the rest, they seem to focus on issues which will have to be determined in the substantive appeal which we have yet to hear. 

6.   It is clear from our judgment of 8 November 2016 that we have not determined any of these questions.  All that we have decided is to postpone the hearing of the appeal until the Court of Final Appeal has handed down its judgment in Sam Woo Marine Works.  That course was taken in light of the special circumstances in the present appeal which we duly explained in our judgment.  It was a decision we arrived at after giving due consideration of the appellant’s written submissions though he chose to absent himself at the hearing of 8 November 2016. 

7.   In our view, the appellant’s questions cannot be the subject matter of any appeal from our judgment of 8 November 2016. 

8.   Further, we have read the affidavit of 18 November 2016 and we cannot discern any other questions of great general and public importance.  Nor can we find any reason to justify leave being granted on the “or otherwise” limb in section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

9.   For these reasons, we dismiss the Notice of Motion of 18 November 2016.