Gary William Moore v. The Royal Hong Kong Jockey Club
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CACV000123A/1989
BETWEEN
------------------ Coram: Fuad, V.-P., Kempster & Macdougall, JJ.A. Date of hearing: 17 May 1990 Date of judgment: 17 May 1990 ------------------ JUDGMENT ------------------ Fuad, V.-P. : 1. On 26th April last, this Court refused leave to Mr. Gary Moore to appeal against a judgment dated 22nd March whereby the Court dismissed an appeal by Mr. Moore against the decision of Jones J. dated the 25th May last year. 2. The application for leave which we dismissed was made under both limbs of rule 2 of the Order in Council which regulates appeals to the Privy Council. That is to say we decided, unanimously, that an appeal, in the circumstances of the case did not lie as of right and that it was not a case in which the Court should exercise its discretion to grant leave on the ground that the question involved in the appeal was one of great general or public importance or otherwise so that it ought to be submitted to Her Majesty in Council for decision. 3. Speaking for myself, I am somewhat surprised that we now have an application for leave to appeal to Her Majesty in Council, under the second limb of rule 2, (that is to say the great general or public importance ground) against our decision of 26th April. 4. As my Lord, Kempster J.A. observed during the hearing of the application, rules on similar lines to rule 2 have been in force for many years in many jurisdictions throughout the Empire, and later the Commonwealth, and yet Mr. Huggins has not been able to find a single example of an application of this kind having been entertained. 5. In my opinion, it is perfectly plain that we have no jurisdiction to hear the motion because the provisions relied upon refer to a judgment (whether final or interlocutory) and the word "judgment" must mean a judgment in a cause or matter which has been determined in the exercise of this Court's jurisdiction under the Supreme Court Ordinance and the rules made thereunder. Despite the breadth of the definition in rule 1, the word "judgment" in rule 2(b) does not embrace a decision made in the exercise of the jurisdiction given to this Court by the Order in Council. 6. The intending appellant has, of course, his right to apply for special leave to Her Majesty in Council. I would dismiss the motion on the grounds of incompetence, and strike it out. Kempster, J.A. : 7. The genesis of this rather bold application made by Mr. Huggins on behalf of Gary William Moore apparently derives from a submission made by Mr. Gratiaen to the Privy Council in Lopes v. Valliappa Chettiar [1968] AC 887, at p.891. Mr. Gratiaen made the point that he was making an application for special leave to appeal from a substantive decision of the Malaysian Federal Court and not against that Court's refusal of leave to appeal. He was not suggesting and, as my Lord the Vice-President has indicated, no other court has ever suggested, that there would be jurisdiction in the final court within any territory in the Commonwealth to entertain an appeal against a decision refusing leave to appeal. Indeed, in my view, there could not be because the jurisdiction of the Court of Appeal is statutory. Here in Hong Kong it is provided for by the Supreme Court Ordinance (Cap. 4). There is, in contrast, a special jurisdiction delegated to this Court by the Order in Council regulating appeals from the Supreme Court or Court of Appeal for Hong Kong to Her Majesty in Council and in construing that Order the words "final judgment of the Court" or "any other judgment of the court" must refer and can only refer to a "decree order, sentence or decision" given in the course of the statutory jurisdiction. 8. For those reasons I agree that we have no jurisdiction to entertain this application. It is incompetent and must be dismissed. Macdougall, J.A. : 9. I agree with what my Lords have said. This application should be dismissed as being incompetent. Representation: Mr. Adrian Huggins (Herbert Smith) for the Applicant. Mr. Charles Ching, Q.C. and Mr. William Stone (Johnson, Stokes & Master) for the Respondent. |