YU CHI SHING PAUL v. OR SIN YI WINDY AND ANOTHER

CACV 5/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2013

(ON APPEAL FROM HCAL 8/2012)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  At the conclusion of the hearing, we struck out the petitioner’s Amended Notice of Appeal dated 9 January 2013 and the appeal itself as being incompetent for want of jurisdiction. We also gave the costs of the appeal, including the application to strike out, to the two respondents, to be taxed if not agreed. We now give our reasons.

The facts

2.  The petitioner was an unsuccessful candidate in the Tin Ping East Constituency of the North District Council election held on 6 November 2011.  By an election petition, he challenged the election result and contended that the returned candidate, the 2^nd respondent, was not duly elected because she engaged in illegal conduct within the meaning of section 26(2) of the Elections (Corrupt and Illegal Conduct) Ordinance (Cap 554); and an organisation, that is, the 1^st respondent, also engaged in illegal conduct within the meaning of section 26(1) of that Ordinance.  After trial, Lam JA (as he then was), sitting as an additional judge of the Court of First Instance, determined in a judgment handed down on 10 December 2012 that the 2^nd respondent was duly elected in the 2011 election, and dismissed the election petition accordingly.

3.  By a Notice of Appeal dated 4 January 2013, the petitioner appealed against the judgment of Lam JA to this court.  He asked for an order that the judgment of Lam JA be set aside and in substitution therefor, an order giving judgment for him by allowing the election petition and determining that the 2^nd respondent was not duly elected in the 2011 election. Minor amendments were made to the Notice of Appeal by way of an Amended Notice of Appeal dated 9 January 2013.

4.  By a summons dated 21 February 2013, the 2^nd respondent applied to strike out the Amended Notice of Appeal on the single ground that as a matter of law, an appeal from Lam JA’s judgment would only lie to the Court of Final Appeal (with leave), but not to the Court of Appeal.

The law

5.  This point of jurisdiction can be resolved by looking at the provisions in the various Ordinances concerned.

6.  The starting point is the District Councils Ordinance (Cap 547).  Part V Division 4 of Cap 547, comprising sections 49 to 60, deals with election petitions.  In particular, section 55(2) provides:

“At the end of the trial of an election petition that relates to an election that was contested, the Court [of First Instance] must determine whether the person whose election is questioned was or was not duly elected and, if not duly elected, determine whether some other person was duly elected instead.”

7.  This is what happened in the election petition tried by Lam JA.  As mentioned, at the end of the contested election petition, the judge determined that the 2^nd respondent was duly elected and dismissed the election petition accordingly.

8.  Originally, section 55(3) of Cap 547 provided that the determination of the Court of First Instance in relation to an election petition “is final as to the matter at issue concerning the election petition”.  In other words, no appeal would lie from such determination to the Court of Appeal or the Court of Final Appeal.

9.  However, in Mok Charles v Tam Wai Ho (2010) 13 HKCFAR 762, 13 December 2010, the Court of Final Appeal declared that a similarly‑worded finality provision in section 67(3) of the Legislative Council Ordinance (Cap 542) in relation to election petitions arising from Legislative Council elections was unconstitutional and invalid as being inconsistent with article 82 of the Basic Law which provides that the power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal.  In its judgment, the Court of Final Appeal recognised that the aim of the finality provision was “the speedy determination of an election petition”, given “the need for certainty in elections”: para 51.

10.  In Chan Yin Chu v Or Yiu Lam Ricky, CACV 276/2009, 1 March 2011, this court (differently constituted) followed Charles Mok and held that the finality provision in section 55(3) of Cap 547 was similarly unconstitutional and invalid as being inconsistent with article 82 of the Basic Law.  The court went on to hold that it had jurisdiction to hear an appeal from a determination by the Court of First Instance in an election petition under Cap 547, pursuant to the general right of appeal given under section 14(1) of the High Court Ordinance (Cap 4).

11.  Following these cases, the Administration introduced the Electoral Legislation (Miscellaneous Amendments) Bill 2011 to provide for an appeal mechanism under which a party to an election petition concerning a Legislative Council election, District Councils election or Village Representative election may lodge an appeal to the Court of Final Appeal against the determination of the election petition by the Court of First Instance, subject to leave being granted by the Appeal Committee of the Court of Final Appeal.

12.  According to the Administration, these “leap‑frog” appeal mechanisms were considered appropriate for the purposes of “achieving speedy resolution of disputes in relation to the constitution of LegCo [Legislative Council] and DC [District Councils] as well as the office of VR [Village Representative]” – they would “help minimize the period of uncertainty faced by individual LegCo Members, DC members and VRs who are subject to election petitions, and would also help alleviate the constituents’ feeling of uncertainty towards their representatives”: Report of the Bills Committee on Electoral Legislation (Miscellaneous Amendments) Bill 2011, LC Paper No CB(2)2249/10-11, para 18.  (This legislative material may be looked at to ascertain the purpose of the relevant amendments under a purposive interpretation: HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, para 14.)

13.  The Bill, which was passed into law, resulted in amendments made to the Hong Kong Court of Final Appeal Ordinance (Cap 484) as well as Cap 4.  Specifically, sub‑paragraphs (v) and (vi) were added to section 22(1)(c) of Cap 484 which therefore reads:

“(1) An appeal shall lie to the Court –

…

(c) at the discretion of the Court, from –

…

(v) a determination of the Court of First Instance under section 55 of the District Councils Ordinance (Cap 547);

(vi) a judgment or order of the Court of First Instance in –

(A) an application for judicial review under section 21K of the High Court Ordinance (Cap 4); or

(B) any other proceedings under that Ordinance, which put in issue whether a candidate declared under section 46 of the District Councils Ordinance (Cap 547) as duly elected at an election can lawfully assume the office of the elected member of the District Council constituency concerned”.

14.  The introduction, in particular, of section 22(1)(c)(v) to Cap 484 means that from a determination of the Court of First Instance under section 55 of Cap 547 in an election petition, an appeal now lies directly to the Court of Final Appeal by leave of that court, thereby “leap‑frogging” the Court of Appeal.

15.  Section 55(3) of Cap 547 was accordingly amended by deleting the finality provision.  Various provisions were added to that Ordinance in consequence of this newly created right of appeal to the Court of Final Appeal: sections 26(e), 58A, 58B and 60.

16.  But not only that.  Given that the creation of the right of appeal to the Court of Final Appeal was effected by adding the amendments described above to section 22(1)(c) of Cap 484, that also has the effect of removing the right of appeal from a determination of the Court of First Instance to the Court of Appeal (which, as mentioned, Chan Yin Chu held to exist by striking down the finality provision in section 55(3) of Cap 547).  This is because section 14(3)(g) provides that no appeal shall lie to the Court of Appeal “from a determination, judgment or order of the Court of First Instance referred to in section 22(1)(c)” of Cap 484.

17.  In short, after the 2011 amendments, which took effect as from 15 July 2011, an appeal now lies from a determination of the Court of First Instance under section 55 of Cap 547 to the Court of Final Appeal, but not the Court of Appeal.

18.  This is patently the view of the Appeal Committee of the Court of Final Appeal in Leung Chun Ying v Ho Chun Yan, Albert, FAMV 21‑22, 24‑26 and 32‑34/2012, 13 November 2012, para 7 (“Section 22(1)(c) is self-evidently concerned as a whole with establishing a discretionary leap-frog appeal directly from the Court of First Instance to the Court of Final Appeal”) and footnote 8 (“This is reinforced by High Court Ordinance, Cap 4, section 14(3)(g) which eliminates appeals to the Court of Appeal in cases coming within section 22(1)(c)”).

The interpretation arguments

19.  This, therefore, disposes of the first argument made by Mr Philip Wong, for the petitioner, in resisting the application to strike out.  Granted that the leap‑frog appeal mechanism introduced by the amendments gives a party to an election petition before the Court of First Instance a direct (but discretionary) right of appeal to the Court of Final Appeal, counsel argued, as a matter of interpretation, the amendments do not curtail the party’s right of appeal to the Court of Appeal as of right under section 14(1) of Cap 4 which provides that subject to 14(3), “an appeal shall lie as of right to the Court of Appeal from every judgment or order of the Court of First Instance in any civil cause or matter”.

20.  Mr Wong’s argument has conveniently overlooked section 14(3)(g) of Cap 4 which, as mentioned, provides specifically that no appeal shall lie to the Court of Appeal from a determination, judgment or order of the Court of First Instance referred to in section 22(1)(c) of Cap 484.  And, after the amendments, a determination under section 55 of Cap 547 by the Court of First Instance in an election petition is now a matter referred to in section 22(1)(c)(v) of Cap 484.

21.  Mr Wong argued that section 14(3)(g) is not engaged unless and until the Court of Final Appeal gives leave to appeal under section 22(1)(c)(v).

22.  This argument must be rejected because section 14(3)(g) refers to “a determination … referred to in section 22(1)(c)”, rather than an appeal against a determination referred to in section 22(1)(c) to which leave has been granted.

23.  My interpretation accords well with the context and purpose of the relevant Ordinances.  The 2011 amendments represent a balance that the legislature has struck between the need for speedy resolution of election disputes for the sake of certainty and the final adjudication power of the Court of Final Appeal.  The suggested interpretation that a losing party to an election petition may, instead of making use of the leap‑frog appeal specifically designed by the legislature, appeal to the Court of Appeal (and, eventually, subject to the leave requirement, to the Court of Final Appeal), would wholly defeat the plain intention of the legislature to achieve speedy resolution of election disputes for the sake of certainty, but would add nothing to the power of final adjudication of the Court of Final Appeal (which is already fully satisfied by the leap‑frog appeal).

The constitutional arguments

24.  Mr Wong argued in the alternative that if the amendments have the effect of taking away the right of appeal to the Court of Appeal (which, in my view, is indeed the case), his client’s constitutional right protected under article 35 of the Basic Law is engaged, and no justification has been advanced to justify the restriction on the constitutional right.

25.  Article 35 of the Basic Law provides relevantly that Hong Kong residents shall have the right of “access to the courts”.  Mr Wong argued that by removing the right of appeal as of right to the Court of Appeal and restricting an intended appellant to the discretionary leap‑frog appeal to the Court of Final Appeal, the right of access to the courts is unjustifiably restricted.

26.  I do not accept the argument.  In Charles Mok, the petitioner/appellant also relied on article 35 as an additional ground to challenge the finality provision there.  The Chief Justice pointed out in his judgment that article 35 did not add much to the appellant’s arguments, as the case actually turned on article 82 of the Basic Law:

“35. I should perhaps at this point also deal with art.35 of the Basic Law, which was relied on by the petitioner. In my view, this article does not advance the argument much further at all. That article deals with access to the courts (among other matters). It is not a provision that sheds much light on the issue with which we have to grapple.

36. For his part, Mr Michael Thomas SC (who appeared for the intervener) is correct when he observes that nothing in the Basic Law states in terms that a right of appeal exists against decisions of the courts. Article 83 of the Basic Law states that the structure, powers and functions of the courts in Hong Kong shall be prescribed by law. Mr Thomas is also correct to point out that there is no inherent jurisdiction in any particular court to hear appeals; the appellate jurisdiction of any particular court is the creation of statute: Solicitor v Law Society of Hong Kong, p.584, para.31 (see para.27 above); Attorney‑General v Sillem (1864) 10 HL Cas 704; (1864) 11 ER 1200.

37. However, as we have seen, the issue involves not a right of appeal but the Court of Final Appeal’s function as a court of final adjudication.  The Court's decision in Solicitor v Law Society of Hong Kong is decisive in this respect.  It is clear that by reason of that decision, art.82 is engaged in the present appeal.”

27.  In short, the Basic Law does not state that there is a constitutional right of appeal against decisions of the courts as such.  The right of access to the courts is different from a right of appeal against decisions of the courts.  In the present case, article 35 is simply not engaged.

28.  Mr Wong referred us to Leung Chun Ying v Ho Chun Yan Albert, FACV 24 & 25/2012, 11 July 2013, for the latest pronouncement by the Court of Final Appeal on the scope of application of article 35.  This is, however, quite unhelpful because that case was not concerned with any right of appeal but rather the question of whether a time restriction for lodging election petition engaged and infringed article 35 in terms of access to the courts.  It had nothing to do with the suggested guaranteed right to appeal.

29.  Mr Wong’s reliance on Secretary for Justice v Wong Sau Fong [1998] 2 HKLRD 254 is equally misplaced.  It was a criminal case and one of the issues raised was whether an appeal to the Court of Appeal from the District Court can be equated with an appeal from the Court of Appeal to the Court of Final Appeal in a criminal case, and the court gave a negative answer.  That issue arose in the context of a convicted defendant’s right of appeal guaranteed by article 11(4) of the Hong Kong Bill of Rights.

30.  The case is wholly distinguishable. Article 11(4) of the Hong Kong Bill of Rights provides that “everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.  Given that guaranteed right, the court in Wong Sau Fong was seized of the question of whether a right of appeal from the Court of Appeal to the Court of Final Appeal is good enough to satisfy the right of appeal guaranteed under article 11(4), which, in a usual case, is satisfied by the right of appeal from the District Court to the Court of Appeal.

31.  However, the issue here is whether there is such a guaranteed right of appeal in a case of the present type, given that article 11(4) of the Hong Kong Bill of Rights obviously has no application to an election petition.  As said, the Court of Final Appeal has already explained that the Basic Law, including article 35, does not state in terms that there is such a right of appeal.  Nor, for that matter, does the Hong Kong Bill of Rights so far as civil matters are concerned.  There is, therefore, no question of any need to compare between the right of appeal as of right from the Court of First Instance to the Court of Appeal and the discretionary right of leap‑frog appeal to the Court of Final Appeal.

32.  For these reasons, I also reject Mr Wong’s alternative argument.

Disposition

33.  I note that a different division of this court has reached the same conclusion on the present question of jurisdiction in 程樂蓀與黃靈新, CACV 65/2012, 12 August 2013.  Being a prior decision of this court, it is binding on us unless it is “plainly wrong”: Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117.  For the reasons given, that decision is a plainly correct one and there is no question of our departing from it.

34.  For all these reasons, the application to strike out and the appeal itself were disposed of as described at the beginning of this judgment.

Hon Kwan JA:

35.  I agree with the Reasons for Judgment of the Chief Judge.

Hon Au J:

36.  I agree with the Chief Judge’s judgment and have nothing to add.