HKSAR v. NGAN LUNG CAFé AND NOODLES RESTAURANT LTD

HCMA18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.18 OF 2003

(ON APPEAL FROM TWS 3543 OF 2002 AND TWS 6463-6466 OF 2002)

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R U L I N G

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1. I have carefully considered the submissions by Mr Choy Bing Wing, the authorised representative of the applicant and that by Mr Cheng, Government Counsel. I have also considered the cases quoted, especially R. v. Wicks [1997] 2 AER 801, Boddington v. British Transport Police [1998] 2 AER 203 and Palacegate Properties Limited v. Camden London Borough Council, 82 P&CR 199.

2. The three points which the applicant submits are points of law of great and general importance, worthy of consideration by the Court of Final Appeal are :

(1) whether the Wednesbury principles of reasonableness are relevant in determining whether an authority has acted unreasonably or ultra vires when the authority appears to have unlimited powers;

(2) whether section 104 of Cap.227 empowers a magistrate to review all his previous orders, including a ruling on a point of law;

(3) whether a magistrate who acted emotionally in detaining the defendant's representative and who had prior knowledge of the defendant's previous convictions should have disqualified himself from conducting the trial.

3. Having considered these points carefully, my decision is I decline to certify that they are points of law of great and general importance or that any point of law of great and general importance was involved in my decision in this appeal.

4. The applicant is advised that if he contends that substantial and grave injustice has been done, he should apply directly to the Court of Final Appeal for leave to appeal and the application should be made by 23 April 2003.