Lai Tak Shing v. Secretary for Home Affairs and Another

FAMV No. 2 of 2007

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION 

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2007 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL FROM CACV NO. 201 OF 2005)

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Between:

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Appeal Committee: Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ

Date of Hearing: 2 March 2007

Date of Determination: 2 March 2007

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D E T E R M I N A T I O N

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Mr Justice Bokhary PJ :

1.Subject to the Secretary’s argument that the judge decided the matter on the basis of inevitability, which argument the Secretary is free to pursue on the appeal, there arises an arguable question of whether the judge went beyond his proper function when he made the findings concerned.  These arguments are worthy of the Court of Final Appeal’s consideration, and Mr Lai is granted leave to appeal accordingly.  On the appeal, the Court of Final Appeal should be assisted on the prior question of the true scope of the Secretary’s powers of amendment under s.67 of the Village Representative Election Ordinance, Cap.576.  In regard to the judge’s findings of fact, there is the question of whether findings of fact made by a judge beyond his proper function can, as the Court of Appeal apparently thought that they could, bind the public authority, here the Secretary, affected by the judge’s decision.  The Court of Final Appeal should also be assisted on this question.

2.This appeal will be fixed to come before the Court of Final Appeal on 8 October 2007, with the following day 9 October reserved.

3.Up to now, this case has been wrongly named in that the Director of Home Affairs has been named where the office holder properly to have been named is of course the Secretary for Home Affairs. We have now put this right.

Mr Philip Dykes SC and Kenneth K H Lee (instructed by Messrs K L Leung & Co) for the applicant

Mr S H Kwok (instructed by the Department of Justice) for the 1st respondent

The 2nd respondent, Tsing Yi Rural Committee, absent