ALLIED GROUP LTD. and Others v. ATTORNEY GENERAL and Another

H E A D N O T E

There is no power in the Court of Appeal to grant leave to appeal to the Privy Council against the Court of Appeal's decision upholding the High Court's refusal to grant leave to apply for judicial review.

On the facts, leave to appeal would have been refused even if there had been power to grant the same.

IN THE COURT OF APPEAL

1993, No. 107
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. The first judgment will be given by Bokhary JA.

Bokhary, J.A.:

2. The decision of this Court upholding the judge's refusal to grant leave to apply for judicial review was part of a filtering process. There was express power, under Order 53, rule 3(HK)(4), in this Court to review that refusal. There is no express power to enlarge the filtering process by granting the leave, which the applicants now seek, to appeal to the Privy Council against this Court's decision upholding the judge's refusal. That this Court's decision can, simply as a matter of language, be brought within the general terms of the Order in Council governing appeals from Hong Kong to the Privy Council is insufficient. The rule, dealt with recently in the decision of the House of Lords in In Re Poh [1983] 1 WLR 2, is to the effect that a filtering process extends only as far as it is made to extend by express, as opposed to general, provision. I take the view that there is no power to grant the leave to appeal now sought.

3. Even if there were, I would nevertheless refuse leave. First of all, the inspector's report has now been submitted by him to the Financial Secretary. None of the relief sought remains apt, whatever the merits may be.

4. Secondly, no point of law of general public importance arises. This Court, accepting or assuming the principles of law advanced on behalf of the applicants, decided against them on the evidence, holding that there were no merits because the matter was unarguable on the material presented.

5. For those reasons, I would dismiss this application.

Penlington, J.A.:

6. I am also of the view that the application should be dismissed. At a first reading, the Order in Council does seem to give a right of appeal to the Privy Council as it could not be couched in wider terms. But having read the decisions, In Re Poh [1983] 1 WLR 2 and in Lane v. Esdaile [1891] AC 210, I am satisfied that the Order in Council must be read in the light of those authorities and that this is the end of the filtering process. There is no right of appeal to the Privy Council.

7. So far as the merits of the matter are concerned, I fully appreciate that this is a matter of great importance to the investing public of Hong Kong in relation to this very large group of companies. Nevertheless, we must be satisfied that there is a point of law here involved of great importance, and I am satisfied that there is no point of law involved here which is of such importance, and the application should be dismissed.

Mayo, J.:

8. I also agree entirely and wish to add nothing.