IN RE YUNG KWAN LEE AND OTHERS

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 109
(Civil)

--------------------------

---------------------

J U D G M E N T

---------------------

Nazareth V-P:

1. This is an application for leave to appeal to the Court of Final Appeal made under s.22(1)(b) of the Court of Final Appeal Ordinance. Accordingly, the first of the two criteria that arises is whether there is a question of great general or public importance. For the respondent, Mr Anthony Wu is content to leave this first matter to this Court. We are satisfied that there is such a question.

2. Turning to the other matter which is whether the court should exercise its discretion to grant leave, Mr Wu relies upon two authorities for the following proposition: That this Court ought not exercise its discretion to grant leave as its judgment is plainly right and not attended with any doubt to justify the court in granting leave to appeal in this case. For that proposition, he relies upon La Cite de Montreal v Les Ecclesiastiques du Seminaire de St Sulpice de Montreal [1889] 14 AC 660 at 662. Put another way, he submits, the intended appeal is so hopeless that it is doomed to fail. For the proposition put this way he relies upon the unreported judgment of this Court in Woomera Company Ltd v Provident Centre Development Ltd, CivApp No. 29 of 1985, at 3. It is not necessary to go to those authorities save to say that in relation to the former, the court made specific reference to the interpretation of a statute which is the nature of the question that also is relied upon here.

3. We have considered counsel's submissions and we think that the nature of all the matters decided by this Court in its judgment in particular the several important points upon which it has had to take a view which it is sought to question are such that discretion should be exercised to grant leave.

4. Accordingly, we will grant leave for the question which is stated in the following terms:

"Whether the provisions of s.10(1) Transfer of Sentenced Persons Ordinance, Cap. 513 ("the Ordinance") deeming warrants issued under the Repatriation of Prisoners (Overseas Territories) Order 1986 ("the Order-in-Council") to be inward warrants issued under the Ordinance provide a basis for the continued lawful detention of the Applicants given that the international arrangements under which they were transferred to Hong Kong no longer apply to Hong Kong and the Order in Council is no longer part of the laws of Hong Kong."

Liu JA:

5. To the judgment of this court just delivered by the Vice-President, I wish to add a rider of my own. Cases which are said to be only one way have often been demonstrated to be otherwise after entertaining well-structured arguments, particularly when they are sought to be more cogently ventilated for the second time.