Re Chm Finance (HK) Ltd.

HCMP002519/1989

Headnote

Licensing Court - Appeal from - to High Court - not to Court of Appeal - Ord. 55 r. 2(a) of R.S.C. inconsistent with S. 16 of Money Lenders Ordinance, Cap. 163. S. 32(3) of Supreme Court Ord. Cap. 4.

Coram: Hon. Yang, C. J. in Chambers

Date of Hearing: 3 November 1989

Date of Judgment: 3 November 1989

----------------------

J U D G M E N T

----------------------

Hon. Yang, C. J.:

1. This motion concerns an appeal by CHM Finance (HK) Ltd. against an order of the Licensing Court dated 17th May this year by which it refused to grant a renewal of a Money Lender's Licence to that company when the company's application was for the grant of a licence and not the renewal of a licence.

2. The appeal was set down for hearing on the 19th January 1990 in the Court of Appeal. By this motion, which is supported by both parties. I am asked to vacate the hearing date and the order that the appeal be transferred to the High Court for hearing by two or more judges of the High Court.

3. I granted the motion and now give my reasons for so doing.

4. The appeal was listed before the Court of Appeal under Ord. 55 r. 2(a) of the Rules of Supreme Court. The rule stipulates that except where it is otherwise provided by these Rules or by or under any enactment, an appeal to which this Order applies shall be heard and determined where the decision of the High Court on the appeal is final, by the Court of Appeal.

5. As was pointed out by Cons, V. -P. in September this year when he was seized of the Notice of Motion to amend the Notice of Appeal, Ord. 55, r. 2(a) seems inconsistent with S. 16 of the Money Lenders Ordinance, Cap. 163, which provides that any person aggrieved by a decision of a licensing court under section 11, 13, 14 or 15 may appeal to the High Court and the decision of the High Court shall be final. S. 11 deals with the determination of application for a licence; S. 13 deals with renewal; S. 14 with revocation and suspension; and S. 15 with transfer of licence and addition or substitution of new premises.

6. Rules of Court are subsidiary legislation made by the Rules Committee under authority given by S. 54 of the Supreme Court Ordinance, Cap. 4. As such they cannot override statutory enactments which must prevail when there is any inconsistency. An appeal from the Licensing Court should therefore properly be heard in the High Court and not the Court of Appeal.

7. The next question is whether or not it should go to a single judge, or two or more judges.

8. Ord. 55 r. 2(a) of the English Rules of Supreme Court provides that an appeal shall be heard by a Divisional Court. The equivalent provision in the 1981 Rules of Supreme Court of Hong Kong refers to the Full Bench. It would seem therefore that there is strong support for the view that an appeal of this kind should not be heard by a single judge. I agree with that view.

9. By S. 32(3) of the Supreme Court Ordinance, Cap. 4, the Chief Justice may direct that any proceeding, or class of proceeding, in the High Court shall be heard and determined by two or more judges of the High Court. Under the authority of that section and for the reasons set out above, I made the order that I did. No order as to costs.

Representation:

Mr. Simon Westbrook (David Tong & Co.) for Applicant

Ms. Victoria Hartstein for Crown/Respondent