WONG TAK YUE v. KUNG KWOK WAI DAVID AND ANOTHER

IN THE COURT OF FINAL APPEAL

HONG KONG

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DECISION

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1. This is an application by the Respondents for leave to adduce further evidence on the hearing of the appeal. It is an application which gives rise to a question of the jurisdiction of a Permanent Judge of this Court sitting alone.

2. The jurisdiction of such a judge derives from section 46(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, which provides that

"In an application for leave to appeal or an appeal, any incidental order or direction, not involving the decision of the application or appeal, any interim order necessary to prevent prejudice to the parties and any order for security for costs or for the dismissal of an application or appeal for default in furnishing security so ordered, may be made or given at any time by a single permanent judge."

The present application is one in an appeal but it is necessary to consider the words "... not involving the decision of the application or appeal ...". The words "the decision of the application" clearly refer to the decision as to whether or not leave to appeal should be granted. That is a matter which is irrelevant to the present application.

3. I see no reason to doubt that when an application is made to this Court to adduce further evidence it must be shown, inter alia, that that evidence must have an important influence upon the result of the case although it need not be decisive. Inevitably, therefore, the granting or refusal of leave requires an assessment of the evidence and its impact upon the final result. In my view that means that it involves the decision of the appeal. I therefore hold that I have no jurisdiction to make an order as sought and the application must be dismissed.

4. This decision does not deal with any question as to whether the admission of the further evidence would be proper. It deals only with the question of jurisdiction. As this decision may be of assistance to the professions I order that it may be published.