GEORGE TAN SOON GIN v. HIS HONOUR JUDGE CAMERON AND ANOTHER

Civil Appeal No 81 of 1991

IN THE SUPREM COURT OF HONG KONG

THE COURT OF APPEAL

(On appeal from High Court

Miscellaneous Proceedings No 449 of 1991)

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J U D G M E N T

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Silke, V.-P.:

1. On the 17th December 1991 this Court ruled that it had jurisdiction to entertain an application by way of Notice of Notion, timeously brought, invoking the provisions of the Order in Council regulating appeals to Her Majesty in Council. Having done so we went on to give the required leave exercising our discretion under Rule 2(b) of the Order.

2. We stated that we would give our reasons later. These are those reasons.

3. In a judgment, handed down on the 29th November 1991, this court dismissed the applicant's appeal from a decision of Barnett, J., made in the course of judicial review proceedings, on the basis of lack of jurisdiction. Essentially we held that, as the root proceedings were a criminal matter in the District Court, the legislation, in particular s.13 of the Supreme Court Ordinance Cap.4, did not permit this court to entertain an appeal because, although brought under the entitlement "civil", it did not fall within the term "in any civil cause or matter".

4. The court in so doing did not follow In Re an Application for Judicial Review by a Firm of Solicitors' (1990) 2 HKLR 146. It did follow the AG v. Alick Au Shui-yuen CA149/91 - (unreported).

5. When this application came on for the hearing Mr G. Harris, who appeared for the Crown, sought to persuade us that we had no jurisdiction to entertain it on the basis that this court, having held the matter to be criminal, it was for the applicant to seek the special leave which is required where criminal matters are concerned and the application did not fall within the provisions of the order in council.

6. This argument found favour with one member of the Court who felt that there were logical difficulties were. this Court, having previously held the proceedings before us to be criminal, now to treat them for the purpose of, this application as civil in nature. He did not however wish to press his doubts to the extent of a dissent.

7. We certainly accept that in criminal matters this court does not and should not consider applications for leave. The decisions in Chung Chuck v. The King, Attorney General for Canada, Intervener (1930) AC p.244 and Oteri v. The Queen [1977] 1 Lloyd's Law Report p.105 make that abundantly clear. We note that in both of those authorities the proceedings were undeniably criminal throughout and lacked any civil tinge.

8. Mr Hamilton, who with Mr Merry appears for the applicant, took two points the first - and this was foreshadowed by another member of this court - that it is the decision on jurisdiction which he seeks to have considered the question he poses being :-

"Whether the Court of Appeal has jurisdiction to hear appeals from the High Court in judicial review proceedings where the decision under review is made in, or relates to, criminal proceedings."

9. It was further contended that the question involved in the appeal falls within the ambit of Rule 2(b), by reason of its great general or public importance, or otherwise, and, ought to be submitted for the decision of the Judicial Committee.

10. There are other grounds, nine in number, which go to the merits of that which we might term the "if we be wrong", aspect of the judgment. Indeed, Mr Hamilton seeks to take issue with this court, having decided that it had no jurisdiction to entertain the appeal, going on to consider at all those other matters.

11. Mr Hamilton's second point raised the issue as to whether there is a form of "quasi civil" or "quasi criminal" proceeding and, if so, whether Rule 2(b) has application.

12. In the light of the decision to which we have come, we do not think it necessary to enter into this difficult field which as far as we are aware has no authority relating to it other than, perhaps, Chiu Tat Cheong, David and Others v. The Attorney General CA63/91 where another division of this court, in circumstances very similar to here, held that it had jurisdiction to grant the leave asked for.

13. We are of the view that the main issue is whether or not the proceedings which led to the judgment to which we have referred are or are not civil in nature and this turns on the question : What is the jurisdiction of this court, a creature of statute?

14. In our judgment this court should accept jurisdiction to entertain this application and under the terms of the Order in Council. It is our very decision on jurisdiction made in what purported to be civil proceedings which is being called into question. We view it as proper that we should treat this application as being also within our jurisdiction. It must be competent for this court to decide whether or not it has jurisdiction within the terms of the relevant legislation. Having found that it has not then we view us as being equally competent to permit the aggrieved party to have that decision considered by the Judicial Committee.

15. While we have not thought it necessary to deal with Mr Hamilton's "quasi civil", or "quasi criminal" point, we are only too well aware that, generally, this matter gives the appearance of being a hybrid.

16. Having assumed jurisdiction, we went on to consider the issue of the great general of public importance of the proposed question. Mr. Harris has, very properly, taken the view that, as it was also the contention of the Crown in the course of the appellate hearing that this was a civil cause or matter, he should remain neutral. We had no hesitation in accepting that the posed question does raise matters of great general or public importance. In the light of the number of decisions directly or indirectly dealing with it, and the consequence which flow from the judgment in issue, a definitive answer from the final appellate court for Hong Kong is desirable to assist in certainty in the law.

17. The other nine grounds are not matters which we would be prepared to consider nor were we asked to do so by Mr Hamilton, and certainly we express no views as to their merits or demerits. Mr Hamilton will, no doubt, take whatever course he thinks to be appropriate in relation to them.

18. The court having granted leave also made orders in terms of paragraphs 1 and 2 the Notice of Motion and - that is the matter of costs and the preparation and despatch of the record.

19. The applicant and his advisers have always proceeded with celerity in the steps that it has been necessary to take in relation to these proceedings. This was acknowledged to be so by Mr Harris. No doubt, in the light of the pending trial in the District Court, they will here act with equal speed.