CHAN YING v. CHIEF EXECUTIVE AND OTHERS

CACV 215/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 215 OF 2008

(ON APPEAL FROM HCAL NO 136 OF 2005)

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DECISION

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Hon Lam JA (giving the Decision of the Court):

1. By a Notice of Motion of 28 December 2012 [“Notice”], the Applicant seeks leave to appeal to the Court of Final Appeal against our judgment of 10 December 2012.  In that judgment, we dismissed the Applicant’s appeal against the decision of Fok JA refusing leave to adduce new evidence for the substantive appeal.

2. Therefore, neither Fok JA nor our judgment dealt with the substantive appeal.  We only refused to permit the Applicant to rely on new evidence at the hearing of the substantive appeal.  The date for the hearing of the substantive appeal has yet to be fixed.

3. Application for leave to appeal to the Court of Final Appeal in a civil matter is governed by section 22 of the Hong Kong Court of Final Appeal Ordinance Cap 484.

4. For the purpose of that section, our judgment is a decision on an interlocutory application.  As such, leave can only be granted under section 22(1)(b) as a matter of discretion.  Before such discretion can be triggered, an applicant has to satisfy this court that 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 the Court of Final Appeal.

5. In our view, the grounds set out in the Notice do not include any question which is of great general or public importance.  They all revolved around the specific circumstances of the present case.

6. Nor are we satisfied that the exercise of interlocutory discretion as to admission of new evidence in an appeal in the present case should otherwise be submitted to the Court of Final Appeal.

7. Leave to appeal to the Court of Final Appeal is therefore refused.  We also order the Applicant to pay the costs of the Respondents in this application, such costs are to be taxed if not agreed.