Kwan Pearl Sun Chu v. Department of Justice

CACV 314/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2005

(ON APPEAL FROM HCAL NO. 56 OF 2005)

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BETWEEN

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Before:  Hon Tang VP and Yeung JA in Court

Date of Hearing: 10 November 2006

Date of Decision: 10 November 2006

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D E C I S I O N

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Hon Tang VP (giving the decision of the Court):

1.The applicant’s application for leave to apply for an order of mandamus was refused by Hartmann J on 21 September 2005.

2.Her appeal from that decision was refused by us on 30 May 2006.  This is her application for leave to appeal to Court of Final Appeal.

3.The applicant has put forward three grounds in support of her application.

4.Before dealing with these grounds, it is relevant to repeat what we said in our judgment of 30 May 2006, namely that we dismissed the application on the merits.  We said at the conclusion of para. 7 of our judgment:

“The application has no basis and is hopeless.”  para. 7 of the judgment.

5.Turning to the three grounds, the 1^st ground relates to whether a decision of the Secretary for Justice not to prosecute is ever open to challenge by judicial review.  We said in our judgment that it was not a point which will require decision because:

“… even if judicial review is available here as in England, this is not a case for leave.”  para. 7 of the judgment.

6.That being the case, the point is academic so far as this application is concerned and leave would not be refused.

7.As for the 2^nd ground, this follows from the 1^st ground.  There is no question of pre-empting the decision of Court of Final Appeal.  The questions simply does not arise for decision, because as we have said:

“… even if judicial review is available here as in England, this is not a case for leave.”  para. 7 of the judgment.

8.As for the 3^rd ground, which reads as follows:

“Pursuant to Article 38 of the Basic Law, the applicant’s right should be safeguarded by the laws of the HKSAR.  This application, therefore, concerned the Basic Law issue, to be decided by Court of Final Appeal.”

9.But no Basic Law point is involved here.  The application for judicial review has no basis and therefore, no question of Article 38 or any other of the provisions of Basic Law is relevant to this application.

10.Ms Vinci Lam, appearing for the Secretary for Justice, has referred us to the case of Hung Cheung-hang and Ors v The Director of Immigration, CACV 225/1998, unreported 5 May 1999, which followed the decision of House of Lords in In Re Poh [1983] 1 WLR 2, and held that there is no right of appeal from a decision of Court of Appeal refusing leave to apply for judicial review.

11.It is unnecessary for us to decide this point, because even if we have jurisdiction to grant leave, we would not do so for the reasons that we have given before.

12.But having regard to the decision of Court of Final Appeal, in Solicitor v Law Society of Hong Kong and Secretary for Justice (Intervener) [2003] 6 HKCFAR 570, we believe leave can be granted in a suitable case to appeal to Court of Final Appeal against the refusal of leave by Court of Appeal.

13.For the reasons that we have given above, this is not a case for leave.

14.For the above reasons, the application is dismissed with no order as to costs.

The Applicant, in person, present.

Ms Lam Wing Sai, Vinci, SGC, instructed by Department of Justice, for the Respondent.