WONG YUI HIN JAMES v. HONG KONG ARTS DEVELOPMENT COUNCIL

CACV224/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 224 OF 2003

(ON APPEAL FROM HCAL NO. 57 OF 2003)

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J U D G M E N T

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Hon Rogers VP:

1. This is an appeal from a refusal by the judge below to grant leave to bring judicial review proceedings. It is my view that the least said on these applications, the better, because if leave be granted, the matter will go before another judge and it would wrong for this court to give indications as to the merits or otherwise of various points if it has to be considered by another court. The matter may be different, of course, if the appeal is refused and leave is not granted.

2. In this case this court considers that there are merits in the application that would warrant granting leave to bring the judicial review proceedings, specifically to claim the two declarations which are set out in the amended notice of application for leave to apply for judicial review, and in that respect this court is also disposed to grant leave to amend that form.

3. The only other matter which has been raised by Mr Pun for our consideration is as to whether an appeal against a refusal to grant leave to bring judicial review proceedings should be treated as an interlocutory or a final matter. He has correctly pointed out that very often these matters are listed before three judges and it can only be listed before two judges, as it has been today, on the basis that it is an interlocutory matter. In my view, this is an interlocutory matter.

4. Mr Pun has drawn our attention to various authorities relating to the difference between interlocutory matters and final matters, including B + B Construction Limited v Sun Alliance and London Insurance Plc [2000] 3 HKCFAR 503, and an earlier case of this court in First Pacific Bank Limited (Formerly known as Hong Nin Bank Limited) v Robert H P Fung [1990] 1 HKLR 527. The test which has been consistently applied in the Hong Kong courts is what is called 'the application test'. That test, succinctly put, is that an application will be treated as being final if no matter what the outcome of the particular proceedings is, the decision will finally conclude the rights between the parties.

5. When leave to apply for judicial review is sought, the result of the application will not finally decide the rights between the parties, because if leave is granted, then the judicial review proceedings will take place and only then, on the conclusion of that, will the rights between the parties be decided. Of course, if the application is refused, that would be the end of the matter and conclusive in that respect, but that would be to apply the order test and not the application test.

6. I would therefore allow this appeal, make the order which is sought in the notice of appeal. Also, as suggested by Mr Pun, it would be appropriate that when the matter is heard it should be heard by a different judge.

Hon Le Pichon JA:

7. I agree.