LEUNG SZE HO ALBERT v. THE BAR COUNCIL OF THE HONG KONG BAR ASSOCIATION

CACV 246/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 246 OF 2015

(ON APPEAL FROM HCAL NO. 63 OF 2014)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

A.   INTRODUCTION

1.  By a judgment handed down on 28 October 2016 (now reported in [2016] 5 HKLRD 542) (“the Main Judgment”), we allowed the Bar Council’s appeal against the judgment of G Lam J dated 24 September 2015. We set aside the order made by the learned Judge and substituted it with an order that the applicant’s application for judicial review be dismissed.  By a Notice of Motion dated 24 November 2016, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal on both the “great general or public importance” limb and the “or otherwise” limb under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.

2.  In relation to the “great general or public importance” limb, the Notice of Motion raised two questions :

(1)   Whether article 33 of the Basic Law is confined to protecting residents only against being forced to work in any or any particular field of occupation against their wish, or whether, on a correct construction, it encompasses also the (qualified) freedom to work in any particular field of occupation of his choice (assuming work is otherwise available and he is otherwise qualified to do so etc.)?  (Question 1)

(2)   Whether Paragraph 23 of the Code – and the Supplementary Rule in particular – engages article 33 of the Basic Law? (Question 2)

3.  In relation to the “or otherwise” ground, the notice of appeal also raised two questions :

(1)   Whether, given the findings of the learned Judge at [80] of his judgment, which were not disturbed on appeal, the Court of Appeal could have been justified in concluding (at [72]-[73] of the Main Judgment) that the Bar Council had given adequate reasons by way of its evidence filed in its defence of the judicial review proceedings, and was not prejudiced? (Question 3)

(2)   Whether the Court of Appeal erred in refusing the applicant’s proposed amendment to his Form 86 in circumstances (referred to at [66] of the Main Judgment) where the Court misapprehended that the proposed amendment related to the constitutional issue and would add nothing as article 33 of the Basic Law was not engaged; whereas in fact the proposed amendment contended that, in view of the (entirely new) construction of Paragraph 23 of the Code advanced by the Bar Council for the first time in the Court of Appeal, the Bar Council had plainly erred in law (in the administrative law sense, and not at a constitutional level) as to the correct interpretation of Paragraph 23?  (Question 4)

A1.   Question 1

4.  Question 1 is self-evidently a question of great general and public importance.  Mr Parker, for the applicant, referred to the second limb that article 33 of the Basic Law, free from authorities, might comprise, as identified by the Chief Judge at [7] of the Main Judgment.  He argued that it is plainly arguable that on a proper analysis, the judgment of Fok JA (as he then was) in GA v Director of Immigration (unreported, 27 November 2013), endorsed by Ma CJ in the Court of Final Appeal ((2014) 17 HKCFAR 60), does not exclude the second limb.  It renders Question 1 plainly arguable.

5.  We have explained why the judgments of Fok JA and Ma CJ in GA v Director of Immigration are binding on this court : [10]-[12] per the Chief Judge and [51], [56]-[57] per Poon JA.  We are not persuaded by Mr Parker’s submissions that Question 1 is reasonably arguable.

A2.   Question 2

6.  Mr Parker submitted that Question 2 is simply to re-frame the abstract question of law in Question 1 within the context of this particular case.  It must follow from our view on Question 1 that it is not reasonably arguable either.

A3.   Questions 3 and 4

7.  It is now well established that leave to appeal on the “or otherwise” limb should only be granted in exceptional cases. And it is generally a matter for the Court of Final Appeal to decide if leave should be granted on this limb.  We cannot see any exceptionality in Questions 3 and 4, which are all fact-sensitive, to merit leave to appeal to be granted by us.

B.   DISPOSITION

8.  For the above reasons, we refuse to grant leave to appeal to the applicant.  His Notice of Motion is dismissed.

9.  Costs should follow the event.  We make an order nisi that the applicant shall pay the Bar Council costs of the application, to be taxed if not agreed.