Cp Ships Usa Llc v. Chief Executive of the HKSAR

cacv 204/2007

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 204 of 2007

(on appeal from HCAL NO. 124 of 2006)

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BETWEEN

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Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 9 November 2007

Date of Judgment: 9 November 2007

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J U D G M E N T

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Hon Rogers VP:

1.This is an application for leave to appeal to the Court of Final Appeal.  It comes under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  It is from a decision of this court which was handed down on 19 September.  The facts relating to the case are as set out in the judgment of this court of that date and there is no need to go into them further.

2.The first question which is sought to be raised is:-

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Whether a court, in deciding whether or not to grant relief in an application for judicial review following a finding that the decision-maker was in error in making a decision after being left with the wrong impression about a relevant matter, is nonetheless entitled to refuse relief where the decision-maker gave no reasons at all for his decision.”

3.That question miscategorises what this court said.  We never said that the decision-maker was in error.  What we said is he might have been given a wrong impression.  But at the end of the day, I said in paragraph 36 of my judgment:

“	If the matter were remitted to the Chief Executive for reconsideration with the clear statement that the applicant had not committed an offence, I cannot see that he would reach a different conclusion.”

4.The grant of relief on judicial review is discretionary and judicial review is not granted where the court comes to the conclusion that it would be futile to grant that relief because the decision would be bound to be the same.

5.The next question which is raised is:-

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Whether a court, in deciding whether or not to grant relief in an application for judicial review following a finding that the decision-maker was in error in making his decision after being left with the wrong impression about a relevant matter, is entitled to refuse relief after taking into consideration an ex-post facto explanation provided by the decision-maker, made in response to the challenge by way of judicial review.”

6.That links up with the first point.  It is a question as to whether, when making his decision, the Chief Executive is entitled to make the decision without giving reasons.

7.The third ground is:-

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Whether a court, in deciding:-

whether or not to grant relief in an application for a judicial review following a finding that the decision-maker was in error in making his decision after being left with the wrong impression about a relevant matter, goes beyond its proper function under the Rules of the High Court, Order 53, when it inquires into and makes its own findings on the merits of a case presented to a decision-maker in order to satisfy itself that the decision-maker would not reach a different conclusion if the case were remitted back to him for a fresh decision.”

8.What that really says, in other words, is that the court should blind itself to the facts of a particular case.  The court cannot do that.  The grant of a judicial review is a discretionary matter and if the court comes to the conclusion that it is the decision that he would have come to, irrespective of the fact that the Chief Executive might have been given a wrong impression, not that he had fallen into error, then the discretion falls to be exercised accordingly.  Again, these are matters which were considered in our judgment, and I do not consider that they raise matters of great or general public importance which should be remitted to the Court of Final Appeal.

9.The last question is:-

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Where policy considerations not involving foreign affairs or acts of State are put in to oppose a petition seeking remission of forfeiture with a view to persuading the Chief Executive to reject the petition, whether fairness requires that before the decision is made by the Chief Executive, the Petitioner should be afforded the opportunity to make representations about the relevance and significance of those considerations, or whether no such obligation exists because matters of policy are in the exclusive domain of the Chief Executive.”

10.As was pointed out, there has been adequate opportunity for the applicant seeking a judicial review to raise any matter relating to the forfeiture with the executive, and in particular to have its views put before the Chief Executive.  In my view, these matters, as to the policy considerations behind the mandatory forfeiture procedure, were such obvious matters, anyway, that even by the stage of the matter coming to court, if the applicant had not raised these matters, it is too late to raise them now.

11.As regards the ‘or otherwise’ grounds, these are really taken care of by what has gone before.  But in any event the matter of leave to appeal under section 22(1)(b), and particularly under the ‘or otherwise’ ground, is really a matter for the Court of Final Appeal to decide as to whether they consider it appropriate to hear an appeal on those grounds.

12.For those reasons, I would not accede to this application.

Hon Le Pichon JA:

13.I agree.

Hon Sakhrani J:

14.I also agree.

Mr P Y Lo, instructed by Messrs Holman, Fenwick & Willan, for the Applicant

Mr Anderson Chow SC, instructed by Department of Justice, for the Respondent