SECRETARY FOR JUSTICE v. LEUNG KWOK HUNG

CACV 200/2017 & CACV 201/2017

[2018] HKCA 543

CACV 200/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 200 OF 2017

(ON APPEAL FROM HCMP NO 3382 OF 2016)

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AND

CACV 201/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 201 OF 2017

(ON APPEAL FROM HCAL NO 224 OF 2016)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

1.  On 13 June 2018, this Court (Lam VP and Poon JA) handed down judgment dismissing the appellant’s application to adduce Professor Zhang Qianfan’s expert evidence on the Interpretation : [2018] HKCA 340.  The appellant now applies for leave to appeal to the Court of Final Appeal.  Having considered the parties’ written submissions, we take the view that the leave application can be properly disposed of on paper without an oral hearing.  We now hand down our judgment.

2.  In his notices of motion dated 11 July 2018, the appellant raised the following questions which he said are of great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision :

(1) Does a party who claims that an interpretation of a provision of the Basic Law by the NPCSC by way of supplementation purportedly pursuant to article 67(4) of the Constitution of the People’s Republic of China and article 158 of the Basic Law has retrospective effect have the burden to adduce expert evidence on PRC law to establish that? (“Question 1”)

(2) Is the rule in Ladd v Marshall applicable where there has not been a trial or hearing of a matter which has been expressly reserved, or must, in the circumstances of the case, be deemed to be reserved on appeal?  (“Question 2”)

(3) Did the Court of Appeal err in principle or in law when it applied the rule in Ladd v Marshall to the appellant’s application for leave to adduce Professor Zhang’s expert report?  (“Question 3”)

(4) Were there exceptional circumstances that would have required the Court of Appeal to depart from the rule in Ladd v Marshall in determining the appellant’s application for leave to adduce Professor Zhang’s expert report?  (“Question 4”)

3.  Before we consider the Questions, it must be borne in mind that the Court’s judgment is an interlocutory decision and leave to appeal to the Court of Final Appeal against interlocutory judgments is generally only granted in rare and exceptional cases.

4.  Turning to Question 1, according to Mr Lee SC, for the appellant, in the proceedings below, he submitted to Au J that the burden lied with the respondents to adduce evidence on PRC law to establish the retrospectivity of the Interpretation but they chose not to do so.  And Au J for the reasons that he gave held that it was not open to the appellant to challenge the lawfulness of the Interpretation.  Mr Lee then reserved his position.  But whatever the position might have been before Au J, when the appellant took out the application to adduce Professor Zhang’s expert evidence on appeal, the question as to who carried the burden of proof was simply not engaged.  On whoever the burden of proof might have rested, it being the appellant’s application to adduce Professor Zhang’s evidence on appeal, he must satisfy the 1^st condition in Ladd v Marshall.  And at [24] of the judgment, the Court held that having failed to adduce the expert evidence before Au J notwithstanding his knowledge about the Court of Appeal’s judgment in Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 without good reason, the applicant had failed to meet the 1^st consideration.  The Court did not decide his application by reference to the burden of proof.  Thus Question 1 simply does not arise in the intended appeal.

5.  Questions 2 to 4 all concern the application of the rule in Ladd v Marshall (as appropriately relaxed in public law cases) to the present case.  They are fact-sensitive and cannot give rise to any question of great general or public importance.  In any event, for the reasons that the Court gave in the judgment, they are not reasonably arguable.  Mr Lee has not been able to persuade us that the Court has erred in the manner as he contended in his written submissions.

6.  In the circumstances, we are not satisfied that the appellant has met the threshold of obtaining leave to appeal to the Court of Final Appeal under the “great general or public importance” limb.

7.  As to the “or otherwise” limb, following the established practice, we will leave it to the Court of Final Appeal to decide if leave should be granted.

8.  For the above reasons, we refuse to grant the appellant leave to appeal to the Court of Final Appeal and dismiss his notices of motion.  We further order the appellant to pay the respondents costs, summarily assessed at HK$34,600.00.  The appellant’s own costs are to be taxed in accordance with the Legal Aid Regulations.