MOK CHARLES PETER v. TAM WAI HO AND OTHERS

CACV 115/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 115 OF 2009

(ON APPEAL FROM HCAL NO. 141 OF 2008)

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DECISION

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Hon Tang VP:

1.  I can state the background briefly. For a fuller account, one can refer to our reasons for judgment dated 3 December 2009.

2.  The applicant was the unsuccessful candidate in the legislative council election for the information technology functional constituency in 2008.  His election petition was dismissed by Reyes J.  Under section 67(3) of the Legislative Council Ordinance, Cap. 542 (“the LegCo Ordinance”), Reyes J’ s decision is final.  That being the case, section 14(3) of the High Court Ordinance, Cap. 4 provides that no appeal shall lie to us.

3.   The applicant, contending that section 67(3) of the LegCo Ordinance, and section 14(3) of the High Court Ordinance are repugnant to article 82 of the Basic Law which vests the final power of adjudication in the Court of Final Appeal, had appealed to us.  We dismissed his appeal, holding that the absence of an intermediate appeal to us does not contravene article 82.  In para. 18 of the reasons, I said:

"18. ... If the Court of Final Appeal considers that Article 82 requires a possibility of appeal to the Court of Final Appeal, no doubt it will enable such an appeal to be made."

4.  Following our decision, by a notice of motion dated 18 January 2010, the applicant sought leave from the Court of Final Appeal to appeal against the judgment of Reyes J (the direct appeal).  The leave application came for hearing before the Appeal Committee on 26 March 2010.  In the second affidavit of the applicant made on 1 April 2010, he explained what happened:

"14.   The leave application was heard before the Appeal Committee on 26^th March 2010.

15.    The 1^st Respondent contended that the CFA does not have jurisdiction to hear the Notice of Motion because the appeal is not an appeal ‘from any ... judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory’ as provided in section 22(1)(b) of the HKCFAO.

16.    My leading counsel Mr. Martin Lee, S.C. submitted that the CFA's jurisdiction to hear the appeal stems from sections 4 and 21 of the HKCFAO and not section 22(1)(b) of the HKCFAO.

17.    In the course of the submissions of Mr. Lee, S.C., one of the members of the Appeal Committee observed that there seemed to be another route whereby an appeal against the CFI Judgment could legitimately be brought before the CFA according to section 22(1)(b) of the HKCFAO, and that is, by way of an application before the CA for leave to appeal against the CA Judgment by which the appeal against the CFI Judgment was dismissed; and invited Mr. Lee, S.C. to consider making an application for adjournment of the hearing of my application then before the Appeal Committee so that I could apply to the CA for leave to appeal against the CA Judgment, with the consequence that the CFI Judgment might be challenged by two routes: first, by a direct appeal to the CFA, and concurrently, by an individual appeal via the CA.

18.    The Appeal Committee further indicated that if leave to appeal against the CFI Judgment and against the CA Judgment is eventually granted, the two appeals to the CFA should be heard together.

19.    Mr. Lee, S.C., having taken instructions, then applied for adjournment of the hearing before the Appeal Committee on my behalf. Leading Counsel for the 1^st Respondent opposed the application, while Leading Counsel for the Intervener did not. The Appeal Committee granted the adjournment. .

20.    In order to expedite the matter, the Appeal Committee gave, inter alia, the following directions:

(1) the application (that is, the application for leave to appeal to the CFA against the CFI Judgment) is adjourned to a fresh date to be fixed after the result of the Applicant's proposed application to the CA for leave to appeal to the CFA is known;

(2) the Applicant to file his application to the CA by 3:30 p.m. on 1^st April 2010;

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(4) liberty to restore this application to the Appeal Committee;

(5) liberty to the parties to seek procedural directions from the Registrar (of the CFA)."

5.  This has led to the present application for an extension of time to apply for leave to appeal to the Court of Final Appeal.

6.  In the special circumstances of this case, I believe an extension of time should be granted.  I appreciate Mr Daniel Fung, SC’s submission that an extension of time should not be granted on the four grounds that he relied on.  But I do not believe that in the circumstances of this case, we should refuse an extension of time.  However, I am not persuaded that leave to appeal to the Court of Final Appeal should be granted.  Even if a point of great general or public importance is involved in this appeal, I do not believe this is a case where leave to appeal should be granted.  As noted, the Appeal Committee has adjourned the applicant’s application for leave to appeal in the direct appeal.  Since the parties would have to return to the Appeal Committee to obtain leave to appeal in the direct appeal, I believe it is more appropriate to leave it to the Appeal Committee to decide at the same time whether or not to grant leave in this appeal.

7.  In this respect, I do not agree with Mr Fung, that we should also leave the question of an extension of time to be considered by the Appeal Committee.  I believe that they will prefer to deal with the substance of the two applications for leave at the same time.  So I will grant an extension of time to apply for leave to appeal, but refuse leave to appeal with costs.

Hon Yeung JA:

8.  I agree with the decision of the Vice-President and have nothing to add.

Hon Lam J:

9.  I also agree.