George Tan Soon Gin v. His Honour Judge Cameron and Another

HCMP000449/1991

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Coram: The Hon. Mr. Justice Barnett in Court

Date of Hearing: 8th January 1992

Date of Delivery of Decision: 8th January 1992

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D E C I S I O N

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1. This is an application by Mr George Tan for leave to appeal to the Privy Council from a judgment which I gave in May 1991. The application is made under Rule 2(b) of the Order in Council Regulating Appeals from the Supreme Court or Court of Appeal for Hong Kong to Her Majesty in Council. The Order was given in August 1909 but has been amended in various details over the years.

2. In order to obtain leave from me, Mr. Tan, the applicant, has to surmount three hurdles. First, he must show that I have jurisdiction to entertain and make the application. Second, he must demonstrate that he has merits; and third, he must persuade me in any event to exercise my discretion in his favour, the leave which he seeks being admittedly discretionary.

3. In order to establish jurisdiction, it is first necessary to show that the word."court" which appears in Rule 2(b) includes a single judge of the High Court of Hong Kong. Mr. Merry, who appears for the applicant, points to the definition of court contained in Rule 1 of the Order in Council, and in particular to the words "a single judge of such Supreme Court". That definition reads:

""Court" means either the Full Court of the Supreme Court of Hong Kong or other the highest Court of Appeal for the time being established in the Colony of Hong Kong, or a single Judge of such Supreme Court or Court of Appeal, according as the matter in question is one which, under the Rules and Practice for the time being in force in such Supreme Court or Court of Appeal, properly appertains to the said Full Court or to a single Judge of such Supreme Court or Court of Appeal."

4. The Supreme Court Ordinance, Chapter 4 of Hong Kong's legislation provides for a Supreme Court consisting of Court of Appeal and High Court. Therefore, says Mr. Merry, a single judge of the High Court has jurisdiction. That, he submits, is in accordance with what is clearly a scheme contained in the order to provide a route of appeal to the Privy Council from the highest competent local court in Hong Kong.

5. I am unable to accept that argument. I am satisfied that the true meaning and intent of the order is that jurisdiction is to be confined to an appellate court or a single judge of such appellate court. On a true reading of the definition of "court", I am satisfied that the words "such Supreme Court" refer to the Full Court and not to the Supreme Court at large. The Full Court was, of course, the appellate court of Hong Kong until the Court of Appeal was established in, I think, 1976.

6. That effectively disposes of this application. In any event, however, I would have declined jurisdiction because I am satisfied that, as the law stands now, a matter before this court is either civil or criminal. There is, in my judgment, no quasi-civil, quasi-criminal or hybrid matter. I say that notwithstanding and with all due respect to the dicta of Silke, V-P when giving on 3rd January 1992 reasons for granting leave to the applicant to appeal to the Privy Council following his appeal in this case (Civil Appeal No. 81 of 1991 - unreported).

7. The Court of Appeal, both in this case and in Attorney General v. Alick Au Shui Yuen (CA 149/91) (unreported) clearly found that a judicial review arising from a criminal case is not a civil cause or matter. I am, therefore, satisfied, in view of what I have just said, that it must be a criminal matter and on the authority of Chung Chuck v. The King (1930) AC 244 special leave from the Privy Council itself is required.

8. As to the merits which were argued before me, the only point which I think to have any substance is whether the District Judge misplaced the burden of proof, and the consequences flowing therefrom. To make this point arguable at this stage requires me to look over my shoulder at what is, because it held it had no jurisdiction, effectively a non-existent judgment of the Court of Appeal. I am concerned with whether I should grant leave to appeal from my judgment. I do not consider it permissible to look behind me to see what the Court of Appeal said when that is plainly obiter.

9. Individually or collectively therefore, I do not see in the points argued anything of great general or public importance. Nor do I consider that the exceptional circumstances of this case (and plainly they are exceptional because I have had difficulty in grasping conceptually the position in which I find myself) bring the case within the rubric "or otherwise" contained in Rule 2(b)

10. In the circumstances, I grant the formal motion for an extension of time to make application for leave, but dismiss the substantive motion for leave itself.

Representation:

Mr. M. Merry instructed by M/s Kwong & Lam for the Applicant.

Mr. G. Harries instructed by M/s Clifford Chance for the 2nd Respondent.