Pun Lin Fa v. Director of Food and Environmental Hygiene and Others

FAMV Nos. 42 and 43 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 42 OF 2016 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV 219 OF 2014)

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BETWEEN

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IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 43 OF 2016 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM CACV 220 OF 2014)

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BETWEEN

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D E T E R M I N A T I O N

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Mr Justice Ribeiro PJ :

1.At the hearing, we adjourned this application for leave to appeal with liberty to the parties to apply for it to be restored for hearing pending the outcome of proceedings remitted by the Court of Appeal to the Court of First Instance referred to below. 

2.In this Determination, we explain the reason for the adjournment and also deal with an issue regarding the jurisdiction of the Court to hear an appeal in a case like the present, where leave to apply for judicial review has been refused in the Courts below.

The jurisdiction issue

3.The applicants, adherents of the Falun Gong movement, challenged by way of judicial review the constitutionality of a legislative scheme authorizing action by the Director of Food and Environmental Hygiene to remove banners, placards or billboards which they had displayed without prior permission as part of what were described as “static demonstrations” mounted by them on Government land.  After hearing full argument, Poon J’s order was that “The application for leave to judicial review be dismissed”.[1]

4.Since Poon J had held what was called “a rolled-up hearing” in which the leave and substantive stages of the judicial review application were heard on the same day – a course which, though aimed at shortening proceedings, may often lead to complications as it did in the present case – the Court of Appeal decided to permit the parties to deploy full arguments on the substantive merits and did not restrict them to whether leave ought to have been granted to proceed to the substantive stage.  It upheld Poon J’s refusal of leave to apply for judicial review on the grounds argued before him (on what were called the “Construction” and “Proportionality” Issues) and the appeal was dismissed to that extent.  However, the appeal was allowed in respect of new arguments not previously advanced (referred to below), the Court of Appeal granting leave to apply for judicial review on those new grounds.

5.The applicants were not satisfied and applied to the Court of Appeal for leave to appeal to this Court against the upholding of the Judge’s decision.  The Court of Appeal[2] noted that there was “an issue between the parties on whether there is any scope for leave to appeal to the Court of Final Appeal to be granted in light of [the Court of Appeal’s] refusal of leave to apply for judicial review on the Construction Issue and the Proportionality Issue”,[3] but decided to “leave the question open”, refusing leave to appeal on the basis that the points of law in question are not reasonably arguable.[4] 

6.At the hearing, Mr Jin Pao, appearing for the respondents, cited a series of authorities, in particular HLF v MTC,[5] and maintained the objection to the Court’s jurisdiction to hear an appeal from the Court of Appeal, the submission being that the Court of Appeal’s refusal of leave to apply for judicial review is not a judgment within the meaning of section 22(1)(b) of the Court’s statute.[6]

7.That argument is unsound.  HLF v MTC, was a case where the applicant needed the Court of Appeal’s leave to bring an appeal from a decision of the District Court in a family law case.[7]  It was held[8] that where the Court of Appeal refused leave to appeal, there was no judgment of the Court of Appeal within the meaning of section 22 of the Court’s statute[9] to found an appeal to the Final Court and therefore no jurisdiction to grant leave to appeal.

8.The present case is obviously different.  Order 53 Rule 3(4) provides:

“Where an application for leave is refused by a judge or is granted on terms, the applicant may appeal against the judge’s order to the Court of Appeal within 14 days after such order.”[10]

9.Thus, the applicants in the present case who had been refused leave to apply for judicial review by Poon J had a right of appeal to the Court of Appeal.  That Court heard full argument and decided the appeal. There is no lack of a judgment from which to appeal and no jurisdictional impediment exists.

The adjournment

10.Although the Court of Appeal dismissed the appeal to the extent of upholding Poon J’s refusal of leave to apply for judicial review on the original “Construction” and “Proportionality” Issues, the appeal was allowed and leave was granted to the applicants to apply for judicial review on new grounds. 

11.Those new grounds are closely connected to the grounds which were dismissed.  Thus, the Court of Appeal allowed the applicants to advance the fresh argument  (involving a modified proportionality issue linked to a legal certainty issue[11]) that aspects of the requirement for permission might be unconstitutional, eg, if it involved content-screening which savoured of censorship in the exercise of the Director’s discretion.  Those new grounds were remitted for determination by the Court of First Instance, with additional evidence likely to be filed.  As those issues have yet to be decided, it would obviously not be possible for them to be dealt with by the Court of Final Appeal if leave were to be granted on the present application.

12.In our view, the questions presently sought to be raised are of considerable public importance.  However, leave to appeal should not be granted on questions confining the Court to the original grounds while closely related issues involving fresh evidence and concerning the same legislative and administrative measures are pending to be dealt with at first instance.  This is particularly so since the issue of proportionality arises in relation to those measures.  A proportionality analysis of the scheme of control cannot satisfactorily be undertaken piecemeal in separate stages, each relating to different aspects of the scheme (regarding the requirement for prior permission and, separately, the grounds for exercise of the Director’s discretion). 

13.We accordingly declined to proceed with the present application for leave to appeal and adjourned the matter sine die with leave to the parties to restore it for hearing, if so advised, in the light of the outcome or further developments in respect of the remitter.   We also reserved costs.

Mr Paul Harris SC and Ms Linda SH Wong, instructed by Ho Tse Wai & Partners, assigned by Director of Legal Aid, for the applicants

Mr Jin Pao, instructed by the Department of Justice, for the respondents and the interested party