T v. Commissioner of Police

CACV 244/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2012

(ON APPEAL FROM HCAL 102/2011)

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JUDGMENT
(ON LEAVE TO APPEAL)

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Hon Cheung CJHC (giving the judgment of the court):

1.At the conclusion of the hearing of the appeal on 31 July 2013, we gave leave to the applicant to amend the notice of appeal and the amended originating summons to include an alternative item of declaratory relief, allowed his appeal, set aside the judgment and order of Lam J (as Lam VP then was) dated 16 July 2012, and in substitution therefor, granted the applicant a declaration on terms to be set out in the reasons for the court’s judgment. On 18 September 2013, we gave our reasons for judgment and set out the terms of the declaration that we made.

2.The Commissioner of Police now seeks leave to appeal from our judgment to the Court of Final Appeal.  The notice of motion sets out two questions said to be questions of great general or public importance within the meaning of section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) in support of the application for leave to appeal.  In paragraph 10 of the Commissioner’s written submissions dated 28 November 2013, three questions said to be questions of great general or public importance are relied on.

3.We do not intend to repeat the facts and issues involved in the present case, or the reasons for our decision.  Suffice it to say, we agree that the question of whether, on the true construction of the definition of “public entertainment” and other relevant provisions in the Places of Public Entertainment Ordinance (Cap 172), an organiser or performer seeking to use a part of a public street for the purposes of an entertainment is required to obtain a licence under the Ordinance only if such person has the ability to control admission by admitting or excluding people, whether such ability is a legal one or derived from a de facto exertion of control over admission, is a question of great general or public importance.

4.However, we are not persuaded that the intended appeal is reasonably arguable. In support of the application for leave to appeal, the Commissioner essentially relies on the views expressed by Lam J below on this question of construction.  For reasons we gave in our reasons for judgment, we disagree with those views.  We have seen nothing in the written submissions to persuade us to change our views, or to convince us that our construction is arguably wrong.

5.For these reasons, we are not prepared to grant leave to appeal.

6.We give the costs of the application for leave to appeal to the applicant, to be taxed if not agreed, together with a certificate for two counsel.

Mr Gerard McCoy SC and Mr Hectar Pun, instructed by Vidler & Co, for the applicant

Mr Johnny Mok SC and Mr Abraham Chan, instructed by the Department of Justice, for the respondent