AU-YEUNG KWOK HING v. ATTORNEY GENERAL

IN THE COURT OF APPEAL

1994, No. 205
(Civil)

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R E A S O N S

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Nazareth, V.-P.:

1. By a majority we refused leave to appeal to Her Majesty in Council. We now give our reasons.

2. The facts are set out in our judgment on the appeal to this Court. Before us leave was sought primarily under r.2(a) of the Rules regulating appeals from this Court to Her Majesty in Council in the 1909 Order in Council:

"2. Subject to the provisions of these Rules, an Appeal shall lie-

(a) as of right, from any final judgment of the Court, where the matter in dispute on the Appeal amounts to or is of the value of $500,000 or upwards, or where the Appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $500,000 or upwards; and

(b) at the discretion of the Court, from any other judgment of the Court, whether final or interlocutory, if, in the opinion of the Court, the question involved in the Appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to His Majesty in Council for decision."

The applicant's primary ground was therefore that his appeal lies as of right from the final judgment of the Court because the appeal involves directly or indirectly some civil right amounting to or of the value of $500,000 or upwards.

3. It was contended that the applicant's civil right involved is his right to continued employment and that this is of the value of upwards of $500,000.

4. However, it seems to me that the applicant's civil right involved is the right to a rational assessment of penalty in the disciplinary proceedings. It does not seem to me that this is a right upon which any value can be put, particularly in the circumstances of this case. Moreover no evidence or calculations were produced and there were several imponderable considerations to be taken into account.

5. It was also submitted that the applicant's right to continue employment if not directly, is indirectly involved. Without deciding that point, it seems to me to be met by Zuliani v Veira [1994] 1 WLR 1149 at 1155 in which the Privy Council held, with reference to provisions materially in the same terms as r.2(a), that:

"In providing that the automatic right of appeal should arise only where the matter in dispute was of the value of (or in excess of) a precise figure the legislature has chosen not to include an award of unliquidated damages. In the view of their Lordships this provision should be strictly construed. No doubt there will be many cases, of which the present is one, where it can be said as a matter of the utmost probability, or even of virtual certainty, that the damages ultimately awarded will be in excess of E.C.$5,000, and in such cases the Court of Appeal may very well think it right, as general rule, to grant leave in the exercise of its discretion. Equally, however, there may be cases - and again the present case may serve as an example - where the likely amount of damages is at or above the statutory threshold, but which are so lacking in merit that the Court of Appeal in its discretion would refuse leave."

6. Zuliani's case was applied by this Court in Kao Lee & Yip (a firm) v Donald Koo Hoi-yan and others, unreported, CA A20 of 1994, 26.10.1994. There Godfrey JA said this:

"However, as is there suggested, if it can be said, as a matter of utmost probability, or even of virtual certainty, that the sum ultimately awarded will be in excess of $500,000, it would be open to this court, as a matter of discretion, to take the view that the question involved in the appeal ought to be submitted to the Privy Council for decision under class (b) even if the question is not of great general or public importance; for class (b) cases include cases which are "otherwise" thought fit to be submitted to the Privy Council for decision.

In the present case, we agree with the respondent that the appellants have no automatic right of appeal. The only claim the appellants have against the respondent which can be quantified in money terms is a claim for damages for breach of contract, the respondent (if the appellants are right) having broken the terms of the contract constituted between the appellants and the respondent on the terms of the 1988 Deed. But the value of that claim has not been quantified, and, so far as case (a) is concerned, that is the end of the matter. (We should perhaps add that the respondent, in taking on work for former clients of the firm, has made profits, as he concedes, in excess of $500,000. But the appellants are not entitled to an account of profits as against the respondent; the claim of the appellants against the respondent is not a claim in tort for infringement of copyright, or mis-use of trade-mark or confidential information, or the like; it is simply a claim for damages for breach of contract. There is no reason to think that these damages would exceed $500,000.)"

7. The position in principle is not dissimilar here. There is of course no claim for damages here, much less any claim for a specified amount. There is, as I have indicated, very little evidence of the quantum of damages. Moreover, there would have to be deducted from the applicant's projected emoluments, the pension payments he will receive together, in all probability, with his future earnings. The position is therefore plainly very far from that of virtual certainty or even of the utmost probability.

8. I have no doubt therefore that the applicant is not entitled to appeal as of right.

9. Turning then to the discretion of this Court under r.2(b), I am satisfied that no question of great general or public importance is involved. As to whether the discretion of this Court should be exercised upon reason "otherwise", I see nothing, including merit, that would warrant such a course.

10. For those reasons, I concluded that leave to appeal should be refused, and upon that basis also the application for time to be extended, as to which, additionally, it did not seem to me that there was a good explanation for the delay.

Bokhary JA:

11. My reasons for refusing the appellant leave to appeal to the Privy Council conform with those given by my Lord.

12. To begin with, I would not extend time for making the application for such leave. What has been put forward by way of explanation for the delay does not, in all the circumstances, persuade me to extend time. And that is an end to the matter.

13. If the application had been made in time or if time for making it had been extended, I would have refused leave on the following bases.

14. First, no appeal lies as of right from our judgment in this case. In contending that he can appeal therefrom as of right, the appellant equated his application for judicial review with an action by him for damages for wrongful dismissal. In my view, that simply cannot be done. Moreover, I do not think that it would help him even if it could be done. And that is because it has not been demonstrated that such an action, even if successful, would have resulted in award of damages of as much as $500,000.00.

15. Secondly, as to the grant of leave at our discretion, I am of the view - here in common with not only my Lord but also my brother Liu - that no question of great general or public importance arises. Like them, I would not have favoured granting leave in the exercise of our discretion.

Liu, J.A.:

16. The applicant was legally aided. Both of his counsel were absent from Hong Kong when the judgment of this court was delivered. The applicant was himself also out of town and did not return until 8 days later. Leading counsel advised an appeal to the Judicial Committee well in time, but legal aid was not granted until 16 March 1995. Notice of Motion was immediately lodged the next day. By then, the applicant was 23 days out of time. The strict time-table has been breached. There has been no gross dilatoriness. The delay has been sufficiently explained. The decision of this court was not unanimous, and there is cause for the applicant to have this matter vital to his interest further tested. I would extend time under Rule 3A(2) of the Hong Kong (Appeal to Privy Council) Order in Council 1909.

17. Rule 2(a) of the 1909 Order in Council provides:-

"2. Subject to the provisions of these Rules, an Appeal shall lie -

(a) as of right, from any final judgment of the Court, ..... where the Appeal involves, directly or indirectly, some claim or question to or respecting ..... some civil right amounting to or of the value of $500,000 or upwards,"

18. The two crucial features under consideration are: (1) the nature of the civil right directly or indirectly involved in the appeal; and (2) the value of that civil right.

19. The applicant was compulsorily retired from the service by an allegedly rational decision. It was not a case of dismissal by the Crown or Government without compensation. See s.15 and s.38 of the Police Force Ordinance. Nor was it a termination of his service in accordance with the Colonial Regulations in the public interest under s.16. The applicant was compulsorily retired under Regulation 13 of the Police (Discipline) Regulations made under s.45 of the Police Force Ordinance. But for his compulsory retirement, he could have legitimately expected to serve some 15 more years in the Force. Whatever the applicant's employment relationship was, the civil right involved in the appeal is his right to remain in the Force had it not been abrogated by the punishment of compulsory retirement awarded against him under Regulations 13(1)(g) of the Police (Discipline) Regulations. In the assessment of the value of his civil right, the possibility of the applicant facing a future termination of or dismissal from his service is as remote as it is unrealistic; there is no room for speculation. For the reason I am about to give, the value of the applicant's civil right in terms of his emoluments and other benefits is clearly over $500,000. The applicant is entitled to appeal as of right and the consequential directions.

20. In Griffin & Sons Limited v. Judge Archer and the General Manager of Railways, [1957] NELR 502, the transport licence was not in issue. The only civil right involved in the application for a writ of prohibition was the right of the appellant to have his case entertained by an unbiased tribunal. The value of that civil right was held to be incapable of being appraised or even assessed in monetary terms. In Royal Hong Kong Jockey Club v. Peter James Miers, [1983] W.L.R. 1049, the Jockey Club Rules did not confer any right to a jockey licence. The grant of a jockey licence was discretionary. See p.1053H. The issue before the court was "confined to whether or not there (had) been a failure on the part of the stewards to comply with the rules of natural justice". See p.1054F. In Anthony Chi Hing Chua's application, Civil Appeal No. 180 of 1992, the judgment of which was delivered on 5 February 1993, the issue was the refused leave to apply for judicial review. The civil right involved was merely one to a hearing for judicial review.

21. In this case, the applicant's civil right to continue with his service in the Force, to which he would otherwise have been entitled, will not be disrupted except by an unimpeachable award made in his disciplinary proceedings. If the applicant should succeed in his intended appeal, his punishment must necessarily be more moderate than the forced retirement he now complains of, and his entrenched employment interest would be less affected. For 15 more years, the value must exceed $500,000.00.

22. The applicant also seeks discretionary leave to appeal under Rule 2(b). The question as formulated is "Where there is a challenge to the discrepancy between conduct and penalty awarded in respect to that conduct, proportionality should stand alone as a proper head of judicial review without having to draw upon irrationality". I, for one, would immediately acknowledge that the applicant will not be barred from ventilating before the Judicial Committee the concept of proportionality which was not favourably received by the House of Lords in a case involving an imposition of restrictions on broadcasting material by the Secretary of State. See R. v. Secretary for the Home Department, Ex parte Brind & others, [1991]1 A.C. 696. See also de Lasala v. de Lasala, [1980] A.C. 546; Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Bank Ltd., [1986]1 A.C. 80. But insofar as it is or may be a legitimate question, it cannot be one of great general or public importance. I would not be disposed to exercise my discretion under Rule 2(b) for the question as formulated. It is unnecessary to consider whether this case is one otherwise thought fit to be brought before the Privy Council.