RANK PROFIT INDUSTRIES LTD v. DIRECTOR OF LANDS

CACV 94/2007

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)

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BETWEEN

RANK PROFIT INDUSTRIES LIMITED Applicant
and
DIRECTOR OF LANDS Respondent

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Before: Hon Tang VP, Le Pichon JA and Sakhrani J in Court

Date of Hearing: 8 January 2009

Date of Decision: 8 January 2009

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D E C I S I O N

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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, [2002] 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.

(Robert Tang) (Doreen Le Pichon) (Arjan H. Sakhrani)
Vice-President Justice of Appeal Judge of the Court of First Instance

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

Appeal dismissed: see FAMV7/2009 dated 25 June 2009