To Kin Wah v. Tuen Mun District Officer and Others

FAMV No.9 of 2006

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 9 OF 2006 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 358 OF 2004)

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Between:

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Appeal Committee: Chief Justice Li, Mr Justice Bokhary PJ and Mr Justice Chan PJ

Date of Hearing: 20 October 2006

Date of Determination: 20 October 2006

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DETERMINATION

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Chief Justice Li:

1.The history of the litigation is set out in the judgement of the Court of Appeal and need not be repeated here.

2.After the decision of the Court in Secretary for Justice v To Kan Chi (2000) 3 HKCFAR 481, the 2nd, 3rd and 4th respondents were appointed managers of the T’ong Tsing Wan Kun (“the T’ong”) on 13 May 2001.  On 2 January 2002, the District Officer of Tuen Mun, the 1st respondent, approved the appointment of the managers.  The applicant who is a member of the T’ong applied to challenge the District Officer’s decision to approve the appointment on judicial review.

3.The judge (Tang J as he then was) dismissed the application.  His decision was upheld by the Court of Appeal which refused leave to appeal to the Court.

4.In seeking leave, the applicant maintains that he is entitled to appeal as of right under s. 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Alternatively, the applicant submits that leave should be granted as questions of great general and public importance are involved.

5.In maintaining that he is entitled to appeal as of right, the applicant submits that “the appeal involves, directly or indirectly, some … question … respecting property … of the value of $1 million or more”.

6.The applicant relies on Becker v Marion City Corporation [1977] AC 271 and Attorney-General for Queensland v Andrews (1979) 145 CLR 573.  But these decisions are of no assistance to the applicant.   In Becker, the provision in the Order in Council was similar to our s. 22(1)(a).  The plaintiff had sought declarations including one that she was entitled to require the council of the City of Marion to examine the plan she had lodged for sub-division of her land and to make a decision.  The Privy Council held that as the judgment sought to be appealed from involves the plaintiff’s proprietary rights in her land, it was one “respecting property” of the designated value.  In Attorney-General for Queensland, the Australian statute required that the “proceedings” must involve a claim, demand or question to or respecting any property or any civil right amounting to or of the value of $20,000 or upwards.  The issue in the proceedings was whether under the Town Planning Scheme in question, a high-rise block of flats could lawfully be erected on the land.  The High Court held that the proceedings involved a question respecting the land.  In reaching its decision, the High Court derived support from Becker.

7.But here, the proposed appeal only concerns the validity of the District Officer’s decision to approve the appointment of the three managers of the T’ong.  Although the T’ong owns substantial properties, and the validity of the District Officer’s decision would affect the managers’ power to manage the properties, it does not follow from this that the proposed appeal is one which involves some question respecting the properties of the T’ong.  In our view, the proposed appeal, which is concerned with the question of the validity of the District Officer’s decision, does not raise any question respecting the T’ong properties.  It does not come within s. 22(1)(a).  Having regard to this conclusion, it is unnecessary to consider the submissions concerning value; as to whether it is the value of the properties of the T’ong which is relevant for the purposes of s. 22(1)(a).  Accordingly, the applicant is not entitled to appeal as of right.

8.The applicant submits that as questions of great general and public importance are involved, leave should be granted as a matter of discretion under s. 22(1)(b).  Two questions are said to arise.  The first is a public law question relating to the effect of misapprehension of a relevant principle by a decision maker.  The second question concerns the exercise of the District Officer’s power to approve applications for approval and registration of managers under s. 15 of the New Territories Ordinance, Cap. 97.

9.Both questions would only arise if the District Officer had in fact misdirected himself by not regarding the applicable customary practices as relevant to the appointment of managers of the T’ong.  The allegation of misdirection is based on certain paragraphs in the District Officer’s affirmation.

10.Both the judge and the Court of Appeal held that, when these paragraphs are understood in their proper context, the District Officer had not misdirected himself.  That conclusion is essentially one of fact.  In our view, it is inappropriate for leave to be granted to enable that conclusion to be re-visited by the Court.  On the basis of that conclusion of the judge and the Court of Appeal, the questions of great general and public importance relied on by the applicant do not arise in the present case.

11.Accordingly, the application for leave is dismissed with costs.

Mr John McDonnell QC (instructed by Messrs Krishnan & Tsang) for the applicant

Mr Michael Yin (instructed by the Department of Justice) for the 1st  respondent

Ms Alice Mok SC and Ms Shannon Leung (instructed by Messrs Cheung & Choy) for the 2nd, 3rd and 4th respondents