Lo Siu Lan and Another v. Hong Kong Housing Authority

CACV 378/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 378 OF 2004

(ON APPEAL FROM HCAL NO.154 OF 2004)

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BETWEEN

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Before : Hon Ma CJHC, Stock & Le Pichon JJA in Court

Date of Hearing : 18 April 2005

Date of Judgment : 18 April 2005

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J U D G M E N T

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Hon Ma CJHC :

1.By the present Notice of Motion, the 1st Applicant in the judicial review proceedings that led to the appeal under question seeks leave to appeal to the Court of Final Appeal from two decisions of this Court : -

(1)	First, the decision made on 15 December 2004 whereby it was ordered that the time for appealing the decision of Hartmann J made the day before be abridged to 1:00 pm on 16 December 2004 and that should a Notice of Appeal be served by that deadline, the hearing of the appeal proper should take place at 2:30 pm that day.
(2)	Secondly, the decision in the appeal itself which was dismissed.

2.The application for leave is put on the basis that the issues in the appeal involve questions of great general or public importance and ought therefore to be submitted to the Court of Final Appeal.  The “otherwise” ground which appears in the Notice of Motion is not relied on by Mr Dykes SC (who appears for the Applicant).  The questions (as amended) are framed in this way in the Notice of Motion, the first question relating to the substantive decision in the appeal, the second relating to the orders for abridgment and for the hearing itself : -

“	(1)	Whether the Hong Kong Housing Authority can, consistent with its overriding duty under section 4(1) of the Housing Ordinance, Cap.283, dispose of retail and car parking facilities in one of its estates without retaining any control over that at a time when they are still being used by the persons for whom they were provided.
	(2)	Whether the orders of the Court of Appeal made on 15.12.2004 abridging the time for filing a notice of appeal herein and expediting the hearing of any appeal deprived the 1st Applicant of her right of access to the court and her choice of lawyers for the timely protection of her lawful rights and interests or for representation in the court, contrary to Article 35 Basic law.”

3.It is clear that the first question ought, by reason of its great general or public importance, to be submitted to the Court of Final Appeal for decision.  Indeed, the parties are agreed as to this and to the formulation of the question as well.

4.As to the second question, the orders of the Court made on 15 December 2004 were ultimately exercises in discretion applying well-known principles.  Nothing has been submitted this morning to suggest otherwise.  Mr Dykes argued it was a possible remedy in relation to the second ground that should an appeal on this ground be allowed, the Court of Final Appeal may conceivably order a rehearing of the appeal before the Court of Appeal.  In my view, these orders do not involve any point of great general or public importance.  They are, as I have already indicated, merely exercises of discretion based on the circumstances prevailing at the time.  In any event, I fail to see the utility or relevance of an appeal here.  The Applicant now has the opportunity of presenting her arguments fully to the Court of Final Appeal on the very issue that I regard as being one of great general or public importance.  I am not convinced by the point argued this morning as to what the Court of Final Appeal may order by way of rehearing.  This seems to me to be highly unlikely and not even what the Applicant can say she seeks at the moment.

5.For my part, I would grant leave to appeal only in relation to the first question.

Hon Stock JA :

6.I agree.

Hon Le Pichon JA :

7.I also agree.

Mr Philip Dykes SC & Mr Hectar Pun instructed by Messrs Barnes & Daly for the 1st Applicant

Mr Russell Coleman instructed by Messrs Clifford Chance for the Respondent

(1) Appeal by the 1st Applicant to Court of Final Appeal. Leave to appeal in relation of the first question granted. Please refer to the appeal judgment of FAMV14/2003.   

(2) Appeal by the 1st Applicant to Court of Final Appeal. Appeal dismissed. Please refer to the appeal judgment of FACV10/2005.