Lo Chai Wan v. Appeal Board and Another

IN THE COURT OF APPEAL

1995, No. 150
(Civil)

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Coram: Power, V.-P., Bokhary and Ching, JJ.A. in Court

Date of Hearing: 6 March 1996

Date of Judgment: 6 March 1996

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J U D G M E N T

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Bokhary, J.A.:

1. We grant the developers leave to appeal to the Privy Council. And we do so on the basis that their proposed appeal lies as of right under article 2(a) of the Order in Council governing appeals from Hong Kong to the Privy Council. But we would have granted leave to appeal even if an appeal did not lie as of right. In that case, we would have done so in the exercise of our discretion under article 2(b) of the Order in Council.

2. Our reasons can be stated quite briefly.

3. The case comes within article 2(a) because "the Appeal involves, directly or indirectly, some ... question ... respecting property ... of the value of $500,000 or upwards." Plainly, the property concerned is worth a great deal more than $500,000. The question whether or not planning permission for a property is valid is by its nature a question respecting that property. And that question in respect of this property is one of the questions which the proposed appeal involves.

4. If the proposed appeal did not lie as of right, we would have had a discretion to grant leave to appeal if we were of the opinion that the question involved in the proposed appeal is one which, "by reason of its great or general or public importance, or otherwise, ought to be submitted to" the Privy Council for decision. Article 2(b) so provides. And we would have been of the opinion that it ought to be so submitted on the basis of the formula "or otherwise". It is true that our decision did not turn on any disputed principle of law, and turned instead on a consideration of only the material which the developers accepted as relevant and only to the degree which they so accepted the same. Nevertheless, a huge sum of money appears to be involved; and, even more significantly, the implications of this case as it affects the general public are very far-reaching indeed.

5. The developers have conditional leave to appeal; and it remains to hear counsel on the question of the conditions, which will be as to security for costs and the preparation and dispatch of the Record.

Representation:

Mr N Thomas, Q.C. & Mr Valentine Yim (instructed by M/s Bernard Wong & Co) for the developers, Henderson Real Estate Agency Ltd

Mr N Cooney (of the Attorney General's Chambers) for the Appeal Board