梁頌恆 v. 立法會主席

CACV 425/2018

[2018] HKCA 924

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 425 OF 2018

(ON APPEAL FROM HCAL 1160/2018)

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AND

(ON APPEAL FROM HCAL 1165/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 14 August 2018, Chow J handed down a decision ([2018] HKCFI 2030) dismissing two summonses respectively taken out by the applicants in HCAL 1160/2018 and HCAL 1165/2018 seeking for stay of execution of the Guangzhou-Shenzhen-Hong Kong Express Rail Link (Co-location) Bill.

2.  On 28 August 2018, Ms Leung Kit-Hing, Doris (“Ms Leung”) filed a notice of appeal against the said decision of Chow J.  Ms Leung was not an applicant in these applications for judicial review nor was she heard in the proceedings before Chow J.

3.  The Registrar of Civil Appeals (“RCA”) observed on 29 August 2018 that:

“ 1. The Notice of Appeal seeks to challenge Hon Chow J’s decision in a case in which the Applicant [ie, Ms Leung] is not a party. Further, in any event, no leave to appeal has been obtained herein, which is required given the decision was made in an application for interim relief.

2. The Notice of Appeal is therefore liable to be struck out.

3. If the Applicant objects to her Notice of Appeal being struck out, she may lodge written submissions (limited to 2 pages) by 5pm on 14 September 2018 in support of her objection.  The Notice of Appeal will be referred to the Court of Appeal for consideration upon the Applicant’s lodgment of submission or 17 September 2018, whichever is earlier.”

4.  In the meantime, Ms Leung applied to the Court of First Instance in HCAL 1160/2018 for leave to adduce evidence.  The application was dealt with by Au J, who handed down a decision on 5 September 2018 ([2018] HKCFI 2030) dismissing Ms Leung’s summons. In gist, Au J opined that Ms Leung was not a proper person to be heard under Order 53 rule 5B of the Rules of the High Court (Cap 4A).

5.  On 14 September 2018, Ms Leung filed an 8-page supplementary notice of appeal purportedly in compliance with the RCA’s directions.  According to the supplementary notice of appeal, Ms Leung intended to appeal against both decisions of Chow J and Au J. 

6.  As the decision of Au J was made after the service of the Notice of Appeal of 28 August 2018, this appeal cannot be a platform for appealing against that decision. For this reason, the purported appeal against the decision of Au J is invalid in law.  Further, as discussed below, that appeal in any event cannot be brought for want of leave under Section 14AA of the High Court Ordinance.

7.  Regarding the decision of Chow J, as observed by the RCA, it is interlocutory in nature. Accordingly, leave to appeal is required before an appeal can be properly brought: see s.14AA(1) of the High Court Ordinance (Cap 4).  In absence of leave, the appeal brought by Ms Leung is incompetent and should be struck out on this ground alone.

8.  Moreover, we observe that there is no endorsement on the Notice of Appeal of 28 August 2018 and it was only marked on its face as addressing, apart from the Court, only to Mr Leung Chung-hang Sixtus and Mr Kwok Cheuk Kin. There is apparently a failure on the part of Ms Leung to serve the Notice of Appeal on the putative respondent (who had been heard before Chow J made his decision).

9.  In the context of the decision of Chow J, the putative respondent is clearly a party to the proceedings before Chow J and is directly affected by the appeal. Pursuant to Order 59 rule 3(5), the Notice of Appeal has to be served on the putative respondent. The failure on the part of Ms Leung to do so means that no effective appeal has been brought.   

10.  In any event, we agree with Au J (for the reasons he gave at [8] – [11] of his decision of 5 September 2018) that Ms Leung is not “a proper person that needs to be heard”.  In short, Ms Leung has no locus to bring this appeal.

11.  In our view, it is a clear abuse of process for Ms Leung to bring the appeal.

12.  For these reasons, we refuse to grant leave to Ms Leung to appeal against the decision of Chow J.

13.  Accordingly, we order that the Notice of Appeal filed on 28 August 2018 and the Supplementary Notice of Appeal filed on 14 September 2018 be struck out and that the appeal be dismissed.