Read the full judgment text of FAMV15/2010 on BabelCite. This Court of Final Appeal judgment was delivered on 14 September 2010 before Mr Justice Bokhary PJ, Mr Justice Chan PJ and Mr Justice Ribeiro PJ.
Criminal law – police disciplinary proceedings – judicial review – extension of time – finality – Hung Chan-wa principle – Bills of Rights art.10 – legal representation – leave to appeal – Court of Final Appeal – exceptional circumstances – The applicant, a former police officer, was compulsorily retired after disciplinary proceedings where legal representation was barred by subsidiary legislation. He sought judicial review, but leave was granted on only two of five grounds; the refusal on the other three was upheld by the Court of Appeal. After the Court of Final Appeal's decision in Lam Siu Po (2009) overruled the prior law on legal representation and proof of operational efficiency, the applicant applied out of time for leave to appeal to the Court of Final Appeal. The Court of Appeal refused. On further application to the Court of Final Appeal's Appeal Committee, the applicant raised three legal questions: whether the finality principle in Hung Chan-wa can be restricted for constitutional cases; whether finality is engaged before substantive hearing; and whether Order 53 r.3 allows partial grant of leave. The Committee held that the Hung Chan-wa principle is of general application, finality is engaged at all stages, and Order 53 r.3 clearly permits partial grant. The ultimate issue was whether exceptional circumstances justified an extension of time. The Committee held that while the applicant was erroneously denied legal representation and the state of evidence might have been different, the circumstances were not exceptional. Finality in litigation is paramount, and overruling of law after the appeal period does not alone justify extension. Leave to appeal out of time refused – no order as to costs between parties – legal aid taxation of applicant's costs.
Legal issues: Application of the Hung Chan-wa finality principle to extension of time for judicial review involving constitutionality · Whether finality is engaged before substantive hearing of judicial review · Jurisdiction under Order 53 r.3 to exclude part of grounds · Whether exceptional circumstances exist to justify extension of time for appeal to Court of Final Appeal
Outcome: Application for leave to appeal out of time to the Court of Final Appeal refused.
Cited by 8 cases