XCHRX In re TSANG YUK KIU

IN THE COURT OF APPEAL

1995, No. 162

(Civil)

IN THE MATTER of Order 53 rule 3(4)
of the Rules of the Supreme Court

_________________

J U D G M E N T

_________________

Litton, V-P:

1. What we have before us is an appeal brought under Order 53 rule 3(4) of the Rules of the Supreme Court which, where relevant, states:

"Where an application for leave is ... granted on terms the applicant may appeal against the judge's order to the Court of Appeal within 10 days after such order."

2. What happened was this. On 20 July this year Saied J gave leave to the appellant Tsang Yuk-kiu to apply for judicial review of a decision of a District Judge, given on 1 July this year, whereby the District Judge refused the appellant's application to stay criminal proceedings which were then on foot against him. Those criminal proceedings are District Court Criminal Case No. 218 of 1995 the trial date for which, we have been informed by counsel, is set for 13 December this year.

3. In giving to the appellant leave to bring proceedings for judicial review Saied J imposed a condition - we are told upon the appellant's own invitation - that the application should be by originating summons to a judge in Chambers. This is specifically allowed for by the Hong Kong Rules, Order 53 r5(1). We are told by counsel that having obtained the order sought the appellant's advisors had second thoughts and regretted that they did not ask Saied J to order that the proceedings should be instituted by originating motion to be heard in open court. Hence the appeal to this court.

4. Counsel is wholly unable to demonstrate to us how the judge has erred in imposing the condition he did, and how this court has jurisdiction to interfere. The mischief apprehended, according to counsel, is that when the originating summons is served on the District Judge, objection might be taken to a hearing in chambers, the matter being in connection with criminal proceedings. For my part I cannot think that an objection of that kind would be taken, but if it were - and if it be valid - it would be perfectly open to the judge hearing the application (fixed for 1 September this year) to order that the proceedings continue in open court. So that supposed mischief also falls away.

5. There are no grounds for interfering with the order made by Saied J on 20 July 1995. In my judgment this appeal must be dismissed.

Liu, JA:

6. In whatever terms the relevant ruling is couched, a discretion was exercised in this case. It has not even been sought to be demonstrated before us that the discretion was wrongly exercised by the judge. I too would dismiss this appeal.

Ching, JA:

7. I agree with the judgments that have been delivered and I too would dismiss this appeal.