THE CATHOLIC DIOCESE OF HONG KONG ALSO KNOWN AS THE BISHOP OF THE ROMAN CATHOLIC CHURCH IN HONG KONG INCORPORATION v. SECRETARY FOR JUSTICE

CACV 18/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 18 OF 2007

(ON APPEAL FROM HCAL NO. 157 OF 2005)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1.  This is an application under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for leave to appeal from the judgment of this Court handed down on 3 February 2010 whereby the court had dismissed the appeal from a judgment of Andrew Cheung J in a judicial review which challenged the constitutionality of the Education Amendment Ordinance (2004).

2.  The notice of motion asks us to grant leave on the basis of a number of questions which are said to be involved in the appeal and to be of great general public importance and which ought for that reason to be submitted to the Court of Final Appeal for determination.

3.  The questions adumbrated in the notice of motion have today been replaced by a single suggested question in these terms:

“Are the provisions of sections 40BK(2) and (3)(a) and 40BU(2) and (3) of the Education Ordinance, Cap. 279, inconsistent with Article 136(1) and/or Article 137(1) and/or Article 141(3)of the Basic Law and are therefore unconstitutional?”

4.  It is in an application of this kind inappropriate for us to repeat the reasoning in the judgment of 3 February 2010.  It suffices to say that we consider that, adopting a contextually purposive approach, the answers are palpably clear.

5.  Accordingly, in the exercise of the discretion conferred upon us by the statutory provision, we decline to grant leave.

6.  The applicant shall pay the costs of this application, to be taxed if not agreed.