Lai Tak Shing v. Director of Home Affairs

CACV 201/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2005

(ON APPEAL FROM HCAL 82 OF 2003)

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BETWEEN

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Before : Hon Cheung JA, Yam J and Sakhrani J in Court

Date of Hearing : 21 December 2006

Date of Decision : 21 December 2006

Date of Reasons for Decision : 27 December 2006

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REASONS FOR DECISION

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Hon Cheung JA :

1.On 21 December 2006 we refused the applicant’s application for leave to appeal to the Court of Final Appeal.  I now give my reasons.

Basis of application

2.The basis of the application as framed is that :

‘ “Where on a judicial review of a decision made under a statutory power it is unnecessary for the judge to make any findings of fact in order to determine whether an applicant has established grounds for judicial review is it then appropriate for the judge to make findings of fact to determine the issue of whether relief should be granted when the relevant statute makes a third party the sole decision-maker and, subject only to governing principles of administrative law, leaves it to him or to her the decide on the process of decision-making, including what matters to take into account and what matters to discard.”,

which ought, by reason of its great general or public importance or otherwise, to be submitted to the Court of Final Appeal for decision.’

Issue is academic

3.In my view this question is an academic one and does not warrant further appeal to the Court of Final Appeal.

4.In the first place, irrespective whether it was necessary for Chung J to do so, he did make the findings which obviously affected the outcome of the relief sought by the applicant.  This  Court cannot proceed as if the finding did not exist.

5.Second, the applicant needed the finding to support his case for judicial review.  As stated in paragraph 12 of the judgment of Chung J :

‘ As will be set out below, both the respondent and the Committee contend that the Secy’s decision is correct mainly because “Tsing Yi Hui” was not an indigenous village.  As regards this contention, the applicant says there is no need for him to prove that matter conclusively.  All he needs to do is to satisfy the court it is proper for the matter to be investigated by the Secy.  As a result, he no longer pursues the relief sought at para. 3 of this application (under the heading “Relief Sought”) but merely seeks an order in terms of para. 1 and 2 thereof.’

6.The three relief sought by the applicant were :

(1)     An order of certiorari to bring up and quash the decision of the Secretary for Home Affairs made on or about 18 July 2003; and

(2)     An order under Order 53 Rule 9(4) remitting the question of whether the Schedule should be amended by adding the name of Tsing Yi Hui to it; and

(3)     A declaration that the Applicant is an indigenous inhabitant of Tsing Yi Hui village within the meaning of section 2 VREO.

7.While the applicant had abandoned the third relief, the question whether Tsing Yi Hui is an indigenous village that existed before 1898 was still one of the issues that the applicant sought Chung J’s determination.  Whether he needed to prove the matter ‘conclusively’ or not does not matter because he had asked the judge to make a determination on this issue.  The judge proceeded to hear evidence and made a finding on which there was no appeal.

8.Accordingly the application was refused with costs to the respondent.

Hon Yam J :

9.I agree.

Hon Sakhrani J :

10.I agree with the reasons given by Cheung JA.

Mr. Philip Dykes, SC and Kenneth K. H. Lee, instructed by Messrs K. L. Leung & Co., for the Applicant

Mr. Kwok Sui Hay, instructed by Department of Justice, for the Respondent