IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 94 OF 2007
(ON APPEAL FROM HCAL NO. 126 OF 2005)
Before: Hon Tang VP, Le Pichon JA and Sakhrani J in Court
Date of Hearing: 8 January 2009
Date of Decision: 8 January 2009
D E C I S I O N
Hon Tang VP:
1. Basically, this appeal involves one question, namely, whether the Director of Lands, as an agent for the government of the HongKong Special Administrative Region, in deciding whether or not to grant modification of the terms and conditions of government leasesin the Hong Kong Special Administrative Region is exercising a public law function susceptible to judicial review. This is the firstquestion identified in the Notice of Motion dated 3 June 2008.
2. The other questions either follow from this question, or they are not really relevant to the appeal.
3. We believe this question has been settled by authorities, including decisions of the Court of Final Appeal, which are binding onus. That being the case, I do not believe this is a suitable case for leave to appeal to the Court of Final Appeal to be granted.
4. Mr Yim suggested that this might be a case where we would exercise our discretion on the “or otherwise” limb, but leave to appealon that basis is highly exceptional. I do not believe Swire Properties Ltd and Ors v Secretary for Justice,  4 HKC 117, supports his submission that this is a case where we should give leave to appeal on the “or otherwise” basis. So I would refuseleave to appeal.
Hon Le Pichon JA:
5. I agree.
Hon Sakhrani J:
6. I also agree.
Hon Tang VP:
7. Leave to appeal is refused with costs.
Mr. Valentine Yim and Mr. Vincent Chen, instructed by Messrs. Wong, Hui & Co., for the Applicant
Mr. Benjamin Yu, SC, instructed by Department of Justice, for the Respondent