TSUI KIN CHUNG v. THE REGISTRAR OF THE COURT OF FINAL APPEAL AND ANOTHER

HCAL 121/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 121 OF 2016

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D E C I S I O N

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1.  This is an application for leave to apply for judicial review of:

(a) The Court of Appeal’s Decision declining to give leave to the Applicant to appeal against various decisions of the Lands Tribunal.

(b) The Registrar’s Decision, declining to accept the filing of the Applicant’s notice of motion for leave to appeal to the Court of Final Appeal (“the CFA”) against the Court of Appeal’s decision.

Background

2.  On 25 June 2016, the Applicant sought to file a notice of motion to apply for leave to appeal to the CFA.  It sought to overturn the decisions of the Lands Tribunal “as to mesne profits and costs (including in respect of all interlocutory applications) on 5 October 2015 pursuant to sections 22(1)(b) and 23(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“HKCFAO”)”.  

3.  In fact, both the Lands Tribunal and the Court of Appeal have refused to give him leave to appeal to the Court of Appeal.  He made the application to the CFA over 3 months after the Court of Appeal’s Decision.

4.  On 29 June 2016, the Registrar of the CFA declined to accept the filing of the notice of motion.  He has considered Section 14AB of the High Court Ordinance, Cap 4 (“HCO”) and section 11AB of the Lands Tribunal Ordinance, Cap 17 (“LTO”). They were in identical wording and carried the same effect, ie “no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted”.  In the Registrar’s view, whichever of these sections applied, the legal effect was that the Court of Appeal’s Decision on refusal of leave to appeal to the Court of Appeal was final.  Any application for leave to further appeal to the CFA was incompetent.  He referred to the judgment in The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd, HCMP 415/2014, 8 April 2016, (CA) Lam VP.

5.  In the present Form 86, the Applicant challenges the Registrar’s Decision on the grounds of illegality or ultra vires, and Wednesbury unreasonableness.  He seeks a declaration that he has the right to lodge an application for leave to appeal to the CFA direct.  He submits that section 14AB of HCO and section 11AB of LTO should be construed so as not to contravene Articles 82 of the Basic Law, which gives the power of final adjudication to the CFA.  He submits that if his application for leave to appeal to the CFA had disclosed no reasonable grounds for leave to appeal or was frivolous, the Registrar could have issued a summons under rule 7 of the Hong Kong Court of Final Appeal Rules.  The jurisdiction to dismiss the application under rule 7 rested with the Appeal Committee.  The Registrar should not refuse to accept the notice of motion for filing.

Intended application for judicial review of the Registrar’s Decision

6.  No appeal lies to the CFA from a refusal by the Court of Appeal to grant leave to appeal to that intermediate tribunal.  That refusal is not a judgment of the Court of Appeal in the context of section 22(1)(b) of the HKCFAO.  See HLF v MTC (2004) 7 HKCFAR 167, §§23 & 27, Ribeiro PJ; The IO of Po Hang Building, §16.

7.  The Registrar’s Decision was correct.  The Registrar did not even have to issue a rule 7 summons.

8.  In The Hong Kong Housing Society & anor v Wong Nai Chung, HCMP 880/2009, 22 September 2010 (CA), Tang VP, §§24-25, it was held that section 63B of the District Court Ordinance, Cap 336 (in similar terms as sections 14AB of HCO and 11AB of LTO) satisfied the proportionality test in limiting the CFA’s power of final adjudication.  I have no doubt that the same principles should apply to appeals from the Lands Tribunal, where proceedings are conducted with as much informality as is consistent with attaining justice (section 10(5)(a) of LTO) and where there are lots of litigants in person.

9.  The Applicant relies on Hong Kong Island Development Ltd v World Food Fair Ltd & anor (2006) 9 HKCFAR 162, §§20-23, for the proposition that in the absence of leave to appeal granted by the Court of Appeal, the application for leave to appeal may be made to the CFA directly. He submits that there is a conflict between HLF v MTC and that case.

10.  First of all, the HKCFAO does not have any provision empowering the CFA to grant special leave for an applicant to appeal despite refusal of leave by the Court of Appeal: The IO of Po Hang Building case, §§12-15.

11.  Secondly, the Applicant has misread the Hong Kong Island Development case.  In that case, there was a substantive judgment of the Court of Appeal for which the Court of Appeal gave leave to appeal subject to conditions.  The applicant sought leave from the Appeal Committee to argue other grounds.  It was held that an applicant dissatisfied with the limited basis on which leave was granted can apply to the Appeal Committee which then exercises its discretion afresh, itself granting leave in limited terms and subject to conditions if so inclined. (§22 of the Hong Kong Island Development case). 

12.  The present case is totally distinguishable in that the Court of Appeal has never granted leave to appeal and there was no “substantive” judgment of the Court of Appeal to appeal against.

13.  All of the grounds put forth by the Applicant have been settled by authorities.  The Applicant fails to meet the threshold test of showing arguable grounds for judicial review under Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.  There was nothing illegal, ultra vires or Wednesbury unreasonable in the Registrar’s Decision. 

Intended application for judicial review of the CA’s Decision

14.  It is trite law that the decision of a superior court is not amenable to judicial review: Swank International Manufacturing Co Ltd v Lau Tai Ming Eddy, HCAL 130/2004, 14 December 2014, A Cheung J (as he then was).  The CA’s Decision is therefore not open to judicial review.

Conclusion

15.  This application is totally unmeritorious.  I decline to grant leave to apply for judicial review.