Chow Po Bor and Another v. Timothy Lee and Another

1993, No. 17
(Civil)

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H E A D N O T E

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For the purposes of the Supreme Court (Amendment) Ordinance No. 2 of 1993 ("the amending ordinance"), whereby it is provided that an appeal should lie to the Court of Appeal from a judgment or an order of the High Court "given or made" on an application for judicial review relating to a criminal cause or matter, such an appeal does not lie where the judgment or order was pronounced before 15th January 1993 (when the amending ordinance came into operation), although it was perfected after that date.

1993, No.17
(Civil)

IN THE COURT OF APPEAL

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J U D G M E N T

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Penlington, J.A.:

1. The first judgment will be given by Godfrey J.

Godfrey, J.:

2. By a summons dated 12th March 1993, the 2nd respondent in this appeal, the Attorney General, has asked this Court to determine a question as to the jurisdiction of this Court to hear the appeal. The Attorney General says that the appeal is incompetent. The appellants deny this.

3. The matter arises in this way. The appellants, aggrieved by a decision of the 1st respondent, a district judge, made in the course of criminal proceedings against the appellants, took that grievance to the High Court on judicial review. The matter came before Mayo J. who on 8th January 1993 said that he would not be prepared to grant the appellants the relief that they sought; that he would dismiss their application; and that he would make an order nisi that the respondents were to be entitled to their costs.

4. That order, pronounced on 8th January 1993, was perfected on 21st January 1993. When was it "given or made"? The Attorney General says it was "given or made" on 8th January 1993. The appellants say it was "given or made" on 21st January 1993. It is common ground that, if the Attorney General is right about this, then the appeal is incompetent.

5. The statutory background against which the question when the order was "given or made" falls to be considered is to be found in the Supreme Court Ordinance, Cap.4 ("the principal ordinance"), as amended by the Supreme Court (Amendment) Ordinance No.2 of 1993 ("the amending ordinance"). By s.13 of the principal ordinance, provision is made for the Court of Appeal and its jurisdiction. Before 15th January 1993, when the amending ordinance came into operation, the criminal jurisdiction of the Court of Appeal did not include appeals from a judgment or order of the High Court made on an application for judicial review relating to a criminal cause or matter. But s.14A, added to the principal ordinance by the amending ordinance, now provides as follows :-

"14A. Appeal from order on application for judicial review in criminal cause or matter

An appeal shall lie to the Court of Appeal from a judgment or order of the High Court given or made on an application for judicial review referred to in section 21K(1) and relating to a criminal cause or matter."

(It is common ground that the appellants' appeal is an appeal to the Court of Appeal from a judgment or order of the High Court given or made on an application for judicial review referred to in s.21K(1) and relating to a criminal cause or matter.)

6. Section 2 of the amending ordinance, however, provides as follows :-

"2. Application

The amendments made by this Ordinance shall not apply in relation to any judgment given or order made before the coming into operation of this Ordinance."

It is this provision which creates the difficulty with which, says the Attorney General, the appellants are faced.

7. The two questions which this Court has been asked to consider are deceptively simple to state and surprisingly difficult to answer. The first question is "What is a judgment?". The second question is "When is a judgment or order given or made?".

8. As to the first question, I have no doubt that Mr Thomas, Q.C. for the appellants was right in drawing to our attention the confusion which exists in the use of the word "judgment" by laymen and lawyers alike. The word "judgment" is often, and perfectly reasonably, used to describe those sheets of paper on which a judge at first instance (or even a justice of appeal) feverishly scribbles for the typist his reasons for coming to the decision which he has pronounced or is about to pronounce. But, for every formal purpose, the word "judgment" does not mean that at all. It means the conclusion which the judge has pronounced and to which (in most cases) effect has to be given by a judgment or order which has to be perfected. Not all judgments or orders need to be drawn up and perfected, but many do. In the case of a judgment or an order which needs to be perfected, it is important to observe that it takes effect from and must bear as its date the day on which the judge has "pronounced, given or made" it : see O.42, r.3(1) and (2) of the local Rules of the Supreme Court.

9. I would accept, as Mr Thomas urges us to do, the argument that when, in the amending ordinance, reference is made to "judgments" given or "orders" made those references are references to perfected judgments or orders. But that does not answer the question: when is such a judgment or order "given or made"? That is the question which we now have to decide.

10. On this short point on the true construction of the amending ordinance, I am of the opinion that for the purposes of s.2 a judgment or order is "given or made" when it is pronounced by the judge. It is not at that stage perfected, but it is at that stage "given or made". If that is right, this judgment or order was "given or made" on 8th January 1993 and, as I have said, it is common ground that, in those circumstances, this appeal is incompetent.

11. I derive support for this conclusion from the fact that this construction of the words "given or made" is the only possible construction of those words as used in O.42, r.3 of the local Rules of the Supreme Court to which I have already referred.

12. And let me given another example of the use of the words "given or made" in the sense in which I have construed them. Under the old practice in the Chancery Division before the reforms introduced following the Oliver Report (1981), provision was made by O.42, r.8(2) of the Rules of the Supreme Court for the drawing up of orders in these terms :-

"Unless the Registrar otherwise directs, a judgment or order must be drawn up within 21 days after the day on which it was given or made."

Now, it is obvious that the words "given or made" as used there refer to the date on which the judgment or order was pronounced. It is that judgment or order which has to be drawn up within 21 days after that date. It seems to me that the words "given or made" in the amending ordinance must bear a similar meaning. If the framers of the amending ordinance had meant to refer to the date on which the judgment or order was perfected, they could easily have said so. That is what the framers of O.59, r.4 of the Rules of the Supreme Court have said ("sealed or otherwise perfected") in relation to the time limited for appeals from the High Court to the Court of Appeal in cases (the majority of cases) to which that rule applies.

13. But that state of affairs is brought about because of the express reference to the sealing or perfection of the order. It is not brought about by the light of nature. It is perfectly possible for an appeal to be limited in time, not from the date of the sealing or perfection of the order, but from the date on which the order was pronounced. Compare, for example, O.59, r.16(2) which makes just that provision in relation to appeals from orders in a matrimonial cause. (In appeals from the District Court, the time of appealing limited by O.59, r.19(3)(a) runs not from the date on which the order is pronounced, nor from the date on which it is sealed or perfected; it runs from the date on which leave to appeal was granted.) And so there is nothing, as it seems to me, magical about the date of perfection of the order in relation to rights of appeal. I prefer, therefore, to give the words "given or made" their natural or ordinary meaning which, as it seems to me, calls for the construction of the phrase in the way for which the Attorney General contends, that is to say, that the order is "given or made" on the day when it is pronounced by the judge; on the day (the same day) which the order when perfected bears on its face as the date of that order; and on the day (the same day) from which it "takes effect" pursuant to O.42, r.3 of the local Rules of the Supreme Court.

14. For all these reasons I am satisfied here that Mayo J.'s order was "given or made" on 8th January 1993 and that this appeal is incompetent. I would strike out this appeal accordingly. I should add that I have not referred in this judgment to the authorities which both sides put before us because, for my part, I found none of them of any assistance.

Penlington,J.A.:

15. For my part I did find the authorities of some assistance but, like Godfrey J., I am satisfied this appeal must be dismissed.

Nazareth, J.A.:

16. I also agree that this appeal is incompetent for the reasons given by Godfrey J. and that the ordinary and natural meaning of the expression "judgment" or "order" given or made is as he has said. I would add that I have found rather more difficulty in coming to those conclusions. in particular in dealing with the effect of s.19 and s.22 of the Interpretation and General Clauses Ordinance. But at the end of the day I am persuaded to his view.