Wong Nai Chung t/a Sun Chung Flower Shop v. Hong Kong Housing Society and Another

FAMV No. 33 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2010 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMP NO. 880 OF 2009)

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Between

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DETERMINATION

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Mr Justice Chan PJ:

1.In this application, the applicant raises 4 questions of law said to be of great general and public importance. In the first 2 questions, he seeks to challenge the constitutionality of the finality provision in s.63B of the District Court Ordinance, Cap 336, which bars further appeals from the refusal of leave by the Court of Appeal; and the 3^rd and 4^th questions are concerned with the merits of the case, i.e. what are the duties of the Urban Renewal Authority (“the Authority”) in continuing and completing development proposals commenced by the now dissolved Land Development Corporation and whether the Authority had discharged such duties.

2.The finality provision in s.63B of the District Court Ordinance was introduced as part of the Civil Justice Reform package for good reasons: to prevent abusive use of the appeal mechanism and to save costs and judicial time. It is however not necessary in the present case to determine whether this provision is constitutional or not. Nor is it necessary to decide whether HLF v MTC, (2004) 7 HKCFAR 167was wrongly decided or should not be followed. Even if the applicant were right in his submission on the first two questions (and on this issue we express no opinion), this would not assist him. His case on the main issue is plainly and obviously unarguable and even if he were permitted to apply for leave to appeal to the Court of Final Appeal, he would not have any real prospect of success.

3.The Strategy in question was only issued under s.20 of the Urban Renewal Authority Ordinance, Cap 563, and was not in existence at the time the old development proposals (including the one involving the applicant’s premises) were introduced and approved by the Land Development Corporation. There is nothing in the Urban Renewal Authority Ordinance requiring old proposals to be subject to the Strategy made under that Ordinance. On the contrary, the Authority is required by s.36(4) to exercise the powers and duties of the Land Development Corporation as if the Land Development Corporation Ordinance had not been repealed. There is simply no room for the argument that any new guidelines made pursuant to another statute should be followed in continuing and completing the old proposals. Mr Martin Lee SC for the applicant is in effect asking the court to re-write not only s.36(4) of the Urban Renewal Authority Ordinance but also Clauses 29 and 31 of the Strategy. This the court obviously cannot do. The applicant’s argument had already been tested but failed twice before the District Judge and twice before the Court of Appeal. They were clearly correct.

4.We are not satisfied that this is an appropriate case to consider the constitutionality issue.  Accordingly, leave to appeal is refused.

[Discussion on costs]

Chief Justice:

5.The application is dismissed with costs. The Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Martin Lee SC and Mr Lee Siu Him (instructed by Messrs JCC Cheung & Co and assigned by the Legal Aid Department) for the applicant

Mr Anderson Chow SC and Ms Queenie W S Ng (instructed by Messrs Kao, Lee & Yip) for the respondents