Leung Kwok Hung and Another v. Chief Executive of the HKSAR

CACV 73/2006 AND CACV 87/2006

CACV 73/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 73 OF 2006

(ON APPEAL FROM HCAL NO. 107 OF 2005)

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BETWEEN

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CACV 87/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 87 OF 2006

(ON APPEAL FROM HCAL NO. 107 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, Yeung and Tang JJA in Court

Date of Hearing : 19 May 2006

Date of Judgment : 19 May 2006

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J U D G M E N T

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Hon Tang JA (giving the judgment of the Court):

1.This is an application by the 1^st and 2^nd applicants for leave to appeal to the Court of Final Appeal, on the basis that the proposed appeal involves a point of great or general public importance.  The point which the parties are agreed on as being such a question is the following:

“where a court declares or otherwise makes a finding that a law or other instrument or conduct is not consistent with one or more articles of the Basic Law of the Hong Kong Special Administrative Region, can the court suspend the effect of its declaration or order it makes consequent upon such finding.”

2.We agree that the question submitted is one of great or general public importance, and we certified accordingly.

3.On that basis, we would also grant leave to 1^st and 2^nd applicants to appeal to the Court of Final Appeal.

4.However, the 1^st applicant, who unfortunately due to other engagements, is not in Hong Kong today, also seeks a further question to be certified, and that question reads as follows:

“

1.

Article 48(3) of the Basic Law provides that the Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions: ‘(…) To sign bills passed by the Legislative Council and to promulgate laws. (…)’ The two Chief Executives, TUNG Chee-wah and Donald TSANG Yam-kuen, have not yet signed and promulgated the ‘Interception of Communications Ordinance’ passed by the Legislative Council.  This is obviously unconstitutional.  Therefore, (I) now appeal against the relevant decision of the Court of Appeal of the High Court.”

5.But for the reasons stated on behalf of the respondent, we do not agree that this involves a point of great or general public importance.  It is a point basically of mixed law and fact, and is the subject of a concurrent finding of this court and the Court of First Instance.

6.So we would not certify this as involving in anyway a question of great or general public importance.

7.As for the directions for the further conduct of the appeal, the parties have agreed on the directions that we should make, but we think after discussion this morning, it appears that the only direction that we need to make relates to the filing of the respondent’s case under r. 26 of Hong Kong Court Of Final Appeal Ordinance, Cap. 484.  As for that, the respondent and the applicants are agreed that the respondent should have 14 days after the receipt of the appellants’ case.

8.Costs be in the cause of the appeal.

1^st Applicant (Appellant in CACV 87/2006) in person (absent).

Mr Hectar Pun, instructed by Messrs K M Cheung & Co, for the 2^nd Applicant (Appellant in CACV 73/2006)

Mr Kevin P Zervos, SC, SADPP and Mr Alexander Stock, instructed by Department of Justice, for the Respondent.