TO KIN WAH v. TUEN MUN DISTRICT OFFICER AND OTHERS

CACV 358/2004

 IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 358 OF 2004

(ON APPEAL FROM HCAL NO. 105 OF 2002)

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REASONS FOR JUDGMENT

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Hon Cheung JA :

1. These are the reasons of our decision of 23 March 2006.

2. This is the applicant’s application for leave to appeal to the Court of Final Appeal against our judgment of 12 January 2006.

3. There were procedural objections by the 1^st respondent, namely, that the applicant had not served the Notice of Intended Application for Leave to Appeal within time and the Notice of Motion did not specify the precise question which is said to be of great general or public importance. 

4. We do not wish to decide the application simply on procedural grounds.  In any event no prejudice is shown by the delay (if any) of the service of the Notice of Intended Application and the formulated questions have since appeared in the summons of 20 March 2006 seeking leave to amend the Notice of Motion.  We allowed the amendment both in respect of the formulated questions and the reliance on the ‘as of right’ ground with costs of the application to amend to be borne by the applicant.

'As of right' ground

5. On the ‘as of right’ ground, the applicant’s case is that the appeal involves directly or indirectly some question respecting property of the value of HK$1 million or more.  In gist it is said that the T’ong Tsing Wan Kun has, among other things, land property in the value of more than HK$1 million and this appeal is concerned with the title of the managers to or their right to administer the property.  Hence the ‘as of right’ requirement under section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance is fulfilled.  It is argued that alternatively if the members of the Tong are considered to be the legal owners of the property, their proprietary interest is also affected. 

6. The applicant prayed in aid of Becker v. Marion City Corporation [1977] AC 271.  In that case the appellant applied to the government for consent to subdivide her land.  The decision of the government was that it was precluded by a new statutory provision from considering the application.  She then unsuccessfully sought a declaration from the court that she was entitled to require the government to consider her application.

7. The Privy Council held that she was entitled to appeal ‘as of right’ because the judgment involved her ‘proprietary right in her 67 acres and is therefore one ‘respecting property’ of the designated value’.

8. In my view each case depends on its own facts.  The challenge by the applicant in this case is on the validity of the decision of the District Officer in approving the appointment of the managers.  The managers are, of course, managers to a Tong which holds land but it cannot be said that the appeal involves either the managers’ or the members’ (including the applicant’s) proprietary rights in the land.  The decision of the District Officer is concerned with the office of the managers and not with the proprietary aspects of their role as managers of the Tong.  The interest of the members is one step even further away from this issue.  In my view section 22(1)(a) is not engaged.

Great general or public importance ground

9. As to the issue of great general or public importance the first question that has been formulated is :

‘ whether an application for Judicial Review who is aggrieved by an administrative decision, and establishes by the decision maker’s own admission that he was under a fundamental misapprehension as to the principle by which he should guided, has to go further and establish that the decision was wrong, or in other words that if the decision maker had not been under the misapprehension he would have reached a different conclusion.’

10. This question is not engaged because on the facts this court has found that the District Officer has not misunderstood the principles on which he was to act.

11. The second question is

‘ ^{whether in approving applications for approval and registration of managers under section 15 New Territories Ordinance, the District Officer is obliged to ascertain whether the applicants are customary managers appointed in the customary way. The approval and supervision of managers of t’so and t’ong land being one of the most important remaining functions of the District Officer in the New Territories, there is a strong public interest in the correct approach being uniformly followed by District Officers.’}

^{12. This question is concerned with the correctness of paragraphs 3 and 4 of the Affirmation of the District Officer which we have set out in our judgment.  Likewise as pointed out in the judgment, these paragraphs when considered in their context do not indicate that the District Officer had misunderstood the proper principle.  As such the second question is also not engaged.}

Conclusion

13. The application was accordingly refused with costs to the respondents to be taxed if not agreed.

Hon Chu J :

14. I agree.

Hon Lam J :

15. I agree.