Base Top Development Ltd. v. Commissioner of Police

CACV000769A/2000

CACV 769/2000 & CACV 104/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEALS NOS. 769 OF 2000 & 104 OF 2001

(ON APPEAL FROM HCAL NOS. 2324 OF 2000 & 2751 OF 2000)

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Coram: Mayo V-P and Keith JA in Court

Date of Hearing: 10 May 2001

Date of Judgment: 10 May 2001

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

1. This is an application under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) for leave to appeal to the Court of Final Appeal. The Court of Appeal had dismissed the Applicant's appeal from the refusal of Yeung J to grant the Applicant leave to apply for judicial review of two decisions of the Commissioner of Police. An issue has arisen as to whether an appeal lies to the Court of Final Appeal from a decision of the Court of Appeal dismissing an appeal from the refusal of the Court of First Instance to grant leave to apply for judicial review. There are said to be conflicting authorities on the point.

2. For present purposes, we are prepared to assume in the Applicant's favour, but without deciding, that such an appeal does lie to the Court of Final Appeal. We are also prepared to assume in the Applicant's favour, but again without deciding, that the proper construction of section 46(b) of the Interpretation and General Clauses Ordinance (Cap. 1) and section 9(2) of the Massage Establishments Ordinance (Cap. 266) involve questions of great general or public importance. However, we do not believe that the construction of those sub-sections for which the Applicant contends is sufficiently arguable to justify submitting the issue relating to their construction to the Court of Final Appeal for decision. For that reason, therefore, leave to appeal to the Court of Final Appeal must be refused.

Representation:
Mr Johnny Mok, instructed by Messrs James P. Y. Lam & Co., for the Applicant.

Mr Wesley Wong, of the Department of Justice, for the Respondent.