RE CHAN KAI WAH

CACV 176/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 176 OF 2012

(ON APPEAL FROM HCAL NO. 93 OF 2012)

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JUDGMENT

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Hon Chu JA giving the judgment of the Court:

1. On 10 May 2013, we gave judgment (“the Judgment”) dismissing the applicant's appeal against the decision of Lam J (as he then was) refusing him leave to apply for judicial review against the decision of the Director of Legal Aid.

2. On 23 May 2013, the applicant filed a Notice of Motion applying for leave to appeal to the Court of Final Appeal against the Judgment.  

3. The Notice of Motion states the ground for the application as follows:

“Hon Yeung VP’s finding in the 10 May 2013 judgment outside subject matter of the hearing was error in fact and the Applicant was not given a real oral submission on the remark in the judgment. The other decisions in the judgment were error in law. The Applicant maintains the grounds outlined in his skeleton argument submitted in the hearing are arguable as in McGlynn v.Welwyn Hatfield District Council [2009] EWCA Civ 285. The Applicant’s skeleton argument will draw the legal analogy.”

4. Section 22(1) of the Court of Final Appeal Ordinance Cap.  484 provides that leave to appeal may be granted, inter alia,

“(a) as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1000000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1000000 or more;

(b) at the discretion of the Court of Appeal or the [Court of Final Appeal], from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the [Court of Final Appeal], as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the [Court of Final Appeal] for decision”.

5. The Judgment is not a final judgment.  Nor does it relate to any liquidated claim or civil claim respecting property of the value of $1 million or above.  Section 22(1)(a) therefore has no application.

6. The applicant’s Notice of Motion has not set out any question of law, let alone question of great general or public importance.  Insofar as the applicant seeks to re-argue the points he made in the appeal before us, we have in the Judgment set out the reasons why they are unarguable.  The applicant has not in his submissions demonstrated how the Judgment amounts to “error in law” as the Notice of Motion contends. 

7. In respect of the point that the applicant’s intended judicial review application is academic (see paragraphs 1 and 25 of the Judgment), since the intended judicial review application is to challenge the decision of the Legal Aid Services Council not to approve his request for a section 26A certificate for the purpose of the leave application in CACV 126 of 2010 (“the Leave Application”), common sense dictates that the outcome of the Leave Application is a most relevant matter that ought to be drawn to the attention of the court. Despite the Leave Application was refused before the applicant commenced the application for leave to apply for judicial review, the applicant has not, on his own motion, related this fact to the court below or this court.  Further, the dismissal of the Leave Application clearly renders the applicant’s intended judicial application academic.  It is trite law that the court will exercise its discretion to refuse remedy where it will serve no practical purpose.  

8. The present application also does not come within section 22(1)(b).

9. Accordingly, we dismiss the application for leave to appeal to the Court of Final Appeal.