Siu Chi Wan Vincent v. Secretary for The Civil Service

HCMP 1907/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1907 OF 2009

(ON AN INTENDED APPEAL FROM HCAL 137 OF 2005)

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Before : Hon Cheung, Yuen and Kwan JJA in Court

Date of Hearing : 25 May 2010

Date of Decision : 25 May 2010

Date of Reasons for Decision : 1 June 2010

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REASONS FOR DECISION

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Hon Cheung JA (giving Reasons for Decision of the Court) :

1.The applicant applied for leave to appeal to the Court of Final Appeal against our decision of 12 November 2009.

2.The application does not fall within the ambit of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 in that our decision which refused to grant the applicant extension of time to appeal against the judgment of Fung J is not a final judgment.

3.The application also fails to satisfy the ‘great general or public importance’ test in section 22(1)(b).  The applicant who was legally represented at the earlier hearing before us only put forward one ground of appeal, namely, the non disclosure of the Advice from Public Service Commission (‘M4’).  We allowed the production of the actual Advice and ruled that there was no prejudice to the applicant despite its non disclosure at the disciplinary proceedings because its content was summarised in M5 which was disclosed.  In our view this point does not require further consideration by the Court of Final Appeal.

4.The applicant in his amended notice of motion referred to other grounds of appeal which were not relied upon before us.  We would not consider these new grounds.  As Li CJ said in Wong Tak Yue v. Kung Kwok Wai (1997-98) 1 HKCFAR 55 at 66

‘ The Court of Final Appeal as a court of final appeal should be very reluctant to consider an issue which was not duly raised and considered in the Court of Appeal.  The circumstances must be very exceptional.’

5.The application was accordingly refused with costs assessed at $20,000 to the respondent.

6.The applicant has asked for payment of the costs by installments.  In default of agreement by the parties, this issue is to be dealt with by the Taxing Master. 

Mr. Newton Chan & Ms Bethany Choi, Government Counsel of Department of Justice, for the Respondent

Applicant, in person, present