A Curious Case of Hk Judicial Review on Appeal Procedures, One Too Many?

By Cheng, Griffith | Nottingham Law Journal, Annual 2017 | Go to article overview

A Curious Case of Hk Judicial Review on Appeal Procedures, One Too Many?


Cheng, Griffith, Nottingham Law Journal


Sam Woo Marine Works Ltd. v. The Incorporated Owners of Po Hang Building Unrep., FACV No. 10 of 2016 (Court of Final Appeal, 29 May 2017) (CJ Ma, Ribeiro PJ, Tang PJ, Fok PJ, Gleeson NPJ)

INTRODUCTION

On 29 May 2017, the Court of Final Appeal handed down judgment affirming that the provision under s 63B of the District Court Ordinance (Cap 336) ("DCO") does not infringe Article 82 of the Basic Law. S 63B relates to the limited right of appeal from District Court decisions in civil cases. It provides that no appeal lies in the Court of Appeal's decision to refuse or grant leave. Article 82 of the Basic Law materially prescribes that "The power of final adjudication of the Hong Kong Special Administrative Region shall be vested in the Court of Final Appeal of the Region...". Mr. Justice Ribeiro PJ, delivering the leading judgment, held that the restrictions imposed do not go beyond what is reasonably necessary and is proportionate to the achievement of the identified legitimate aims.

FACTS

The facts of the case can be briefly summarized. The appellant shop owner erected fixtures in the common parts of a multi-storey building. The respondent incorporated owners commenced proceedings against the appellant in the District Court alleging breach of deed of mutual covenant. The appellant failed to file a defence in time and leave to file pleadings out of time was refused. It was held that the appellant's defence of adverse possession was not reasonably arguable and leave to appeal to the Court of Appeal was subsequently refused by the trial judge. Leave for appeal against the refusal to the Court of Appeal was conducted on paper and then viva voce but proved unsuccessful. Further leave to the Court of Final Appeal was sought and dismissed due to the finality provision under s 63B. Justice Lam VP, giving judgment of the court, held that s 63B was consistent with Article 82 of the Basic Law as a proportionate restriction and operates as a restricting provision. The Court of Final Appeal was tasked to determine the constitutionality of s 63B and the jurisdiction of the court to entertain appeals from a judgment of the Court of Appeal refusing leave to appeal to it.

RULING

Justice Ribeiro observed that Article 82 does not confer constitutional rights of appeal to the final court on litigation parties. (1) Nonetheless, restrictions on rights of appeal have a limiting effect on the Court's constitutional power of final adjudication and cannot be arbitrarily imposed. (2)

The immediate question relates to the nature of the restrictions imposed, if any. The appellant unsuccessfully argued (3) that s 63B is inconsistent with and trumped by the sections 19 and 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) ("HKCFAO"), the combined reading of which, it was submitted, indicated that the Court of Final Appeal's discretionary jurisdiction (4) to hear appeals extends to decisions of the Court of Appeal as to whether or not leave to appeal against the latter should be granted. (5) Even if the inconsistency is accepted, applying the lex posterior rule that earlier provisions give way to the latter, Justice Ribeiro held that the DCO amendments, which included s 63B, enacted in 2008, overrode sections 19 and 22(1)(b), enacted on 1 July 1997. (6) S 63B in essence qualified s 22(1)(b) as a finality provision.

The more fundamental issue pertains to the combined meaning of sections 63(1), 63A(2) and 63B of the DCO. Justice Ribeiro relied on the House of Lords in Lane v Esdaile (7) where it was held on a purposive construction that the requirement to obtain leave from the Court of Appeal regarding a first instance judgment was "intended as a check to unnecessary or frivolous appeals" and would be rendered absolutely illusory should an appeal from a refusal of leave to appeal be allowed. (8) It is observed this line of reasoning had since been refined and applied for more than a century (9) by the UK courts as well as in HK. …

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