CHU CHUNG TAK T/A YEE HOP TRADING CO v. THE DIRECTOR OF HEALTH

HCMP001895/1992

1992, M.P. No.1895

IN THE SUPPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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IN THE MATTER of Order 53, rule 3 of the Rules of the Supreme Court Cap.4

and

IN THE MATTER of an Application for Judicial Review by Chu Chung Tak trading as Yee Hop Trading Company

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BETWEEN

CHU CHUNG TAK trading as YEE HOP TRADING COMPANY

Applicant

AND

THE DIRECTOR OF HEALTH

Respondent

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Coram: Hon. Liu, J. in Court

Date of hearing: 21 December 1992

Date of delivery of judgment: 21 December 1992

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J U D G M E N T

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1. This is an application for judicial review in respect to an assignment of imported pork meat. Various decisions of the Director ofHealth have been challenged, but when counsel for the applicant appears before me this morning, it is fairly brought to my noticethat no decisions of the Director of Health would be sought to be impugned except for his alleged failure and/or omission to releasethe pork meat in question to the applicant for its return to the alleged country of origin.

2. The alleged failure and/or omission of the Director of Health in this direction is loosely framed under the heading of “Judgment,order, decision or other proceeding in respect of which relief is sought”. But in the Amended Statement served under 0.53, r.3(2)of the Rules of the Supreme Court, the accompanying amended grounds 6A, 6B and 6C make it perfectly clear that the questioned failureand/or omission of the Director of Health stemmed from his alleged refusal on 19th October 1992 to release the said pork meat forits return to PRC. The applicant’s request for the return to PRC of the pork meat under consideration was submitted, for the firsttime, in his solicitors’ letter dated 25th September 1992. It is without doubt, therefore, that this outstanding controversy betweenthe applicant and the respondent arose in late 1992.

3. The fiat for the applicant to move this Court for the relief sought in his notice is, and has throughout been, said to derive fromthe leave granted by the High Court on 3rd July 1992, a date anterior to the said alleged failure and/or omission on the part ofthe Director of Health, which is the outstanding issue for determination.

4. It is not suggested that leave granted on 3rd July 1992 has even been extended or enlarged. This motion is sought to be presentedpursuant to the original leave granted on 3rd July 1992. It is axiomatic that leave granted on 3rd July 1992 could not comprise matterfor consideration, which arose in late 1992.

5. It is a juridical matter which has gone beyond a mere technicality. As gleaned from the contents of the Skeleton Arguments so verykindly submitted for the assistance of this Court by Mr Yuen, counsel for the applicant, this Court would not be prepared to grantleave for the outstanding issue to be canvassed without thorough and proper assistance of the legal advisers of the applicant. Wereit otherwise, the juridical obstacle could and would readily be resolved. In any case, no such application is now pursued.

6. For the reasons I have given, without leave the applicant’s instant application could not, in law, be entertained. The applicationmust therefore be dismissed with costs to the respondent.

(B. Liu)
Judge of the High Court

Representation:

Mr Rimsky Yuen, instructed by Messrs Howell & Co., for the Applicant.

Mr P.A. Davies, Crown Counsel of Crown Solicitor, for the Respondent.