FACV No.

10 of 2016

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 10 OF 2016 (CIVIL)

(ON APPEAL FROM HCMP NO. 415 OF 2014)
________________________

BETWEEN

THE INCORPORATED OWNERS OF Plaintiff

PO HANG BUILDING (Respondent)

and
SAM WOO MARINE WORKS LIMITED Defendant
(Appellant)

and

SECRETARY FOR JUSTICE Intervener

(Intervener)

________________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ,

Mr Justice Tang PJ, Mr Justice Fok PJ
and Mr Justice Gleeson NPJ

Date of Hearing and 15 May 2017

Judgment:

Date of Reasons for 29 May 2017

Judgment:

REASONS FOR JUDGMENT

 -2-

Chief Justice Ma:

I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

At the hearing, the Court dismissed this appeal with reasons to

follow. These are my reasons.

The District Court Ordinance (DCO) 1 gives a limited right of

appeal from decisions of the District Court in civil cases. Section 63(1)2 provides
that such appeals can only proceed with leave of a judge or the Court of Appeal.
By section 63A(2), 3 such leave shall not be granted unless the appeal has a
reasonable prospect of success or there is some other reason in the interests of
justice for hearing the appeal. And section 63B4 provides that no appeal lies from
the Court of Appeals decision to refuse (or grant) leave.

The appellant seeks to challenge the constitutionality of section 63B

in respect of a refusal of leave, contending that it is inconsistent with Article 82
of the Basic Law which materially states: The power of final adjudication of the
Hong Kong Special Administrative Region shall be vested in the Court of Final
Appeal of the Region...

1
Cap 336.
2
Section 63(1): Subject to subsection (3) [presently not relevant], an appeal can, with leave
of a judge or the Court of Appeal, be made to the Court of Appeal from every judgment,
order or decision of a judge in any civil cause or matter.
3
Section 63A(2): Leave to appeal shall not be granted unless the judge ... or the Court of
Appeal hearing the application for leave is satisfied that (a) the appeal has a reasonable
prospect of success; or (b) there is some other reason in the interests of justice why the
appeal should be heard.
4
Section 63B: No appeal lies from a decision of the Court of Appeal as to whether or not
leave to appeal to it should be granted.
 -3-

A. How the issue arises

The appellant is the owner of a shop on the ground floor of Po Hang

Building, of which the respondent is the Incorporated Owners corporation (IO).
The appellant erected a metal fence and door enclosing a service lane running
adjacent to the building and forming a portion of its common parts. The IO
brought proceedings against the appellant in the District Court alleging breach of
the Deed of Mutual Covenant (to which the appellant is a party)5 and seeking
mandatory injunctions requiring the fence and door to be removed and the lane
reinstated.

The appellant failed to file a defence in time, leading to the IOs

application for judgment in default. This was met by the appellants application
for an extension of time to file its defence and counterclaim, contending that the
IOs claim was defeated by limitation and that the appellant had acquired title to
the service lane by adverse possession.

His Honour Judge Kent Yee6 refused the appellant leave to file its
pleadings out of time and entered judgment in favour of the IO. He held that on
the relevant authorities,7 the defence of adverse possession was not reasonably
arguable because breach of the DMC remained actionable by the IO
notwithstanding the appellants purported acquisition of a possessory title.

5
As well as breach of section 34I(1) and (2) of the Building Management Ordinance (Cap
344).
6
DCCJ 2259/2013 (23 December 2013).
7
Incorporated Owners of Man Hong Apartments v Kwong Yuk Ching [2001] 3 HKC 116;
Incorporated Owners of No 27A Chatham Road, Kowloon v Lee Kai Kong [2001-2003]
HKCLRT 273; Incorporated Owners of Mountain View Mansion v Heart Cuisine and Ors.
[2012] 4 HKLRD 628; and Wong King Lim v Incorporated Owners of Peony House [2013]
4 HKC 295.
 -4-

The appellant then applied to his Honour for a stay of execution and
for leave to appeal to the Court of Appeal. That application was dismissed8 on the
basis that an appeal had no reasonable prospect of success and there was no other
reason why the appeal should be heard in the interests of justice.

The appellant next applied to the Court of Appeal for leave to appeal
against the Judges decision refusing leave to file out of time and entering
judgment in the IOs favour. This was dealt with on the papers and Chu JA,
writing for the Court,9 held that the threshold criteria for granting leave to appeal
were not made out and refused leave. The application was renewed at an oral
hearing10 but the Court of Appeal remained unpersuaded that the appellants case
was reasonably arguable.

The appellant proceeded to seek the Court of Appeals leave to

appeal to this Court against that Courts refusal to grant the appellant leave to
appeal to itself against Judge Kent Yees decision. As Lam VP (giving the
judgment of the Court) pointed out,11 given the finality provision in DCO section
63B, this was on its face an incompetent application. However, the appellant
sought to contend that section 63B is inconsistent with Article 82 of the Basic
Law and thus unconstitutional. Applying an earlier Court of Appeal decision12
and the reasoning of the Appeal Committee in HLF v MTC,13 Lam VP upheld the

8
DCCJ 2259/2013 (7 February 2014), 23-24.
9
Lam VP and Chu JA, HCMP 415/2014 (6 August 2015), 32.
10
Lam VP and Chu JA, HCMP 415/2014 (18 September 2015), referred to in the Court of
Appeals judgment dated 8 April 2016.
11
Hon Cheung CJHC, Lam VP and Chu JA, HCMP 415/2014 (8 April 2016) at 3.
12
Hong Kong Housing Society and Secretary for Justice v Wong Nai Chung HCMP 880/2009
(unreported, 22 September 2010) (CA).
13
(2004) 7 HKCFAR 167.
 -5-

constitutionality of section 63B as a proportionate restriction and dismissed the

application.

Leave to appeal to this Court was sought from the Appeal

Committee 14 on both the constitutionality and adverse possession issues. It
granted leave only on the following questions:

(1) Is s 63B of the District Court Ordinance, Cap 336 inconsistent with Article 82
of the Basic Law of the Hong Kong Special Administrative Region and thus
unconstitutional?

(2) Does the CFA have jurisdiction to entertain an appeal from a judgment of the
CA refusing leave to appeal to it?

The application seeking to raise issues regarding adverse possession and

advanced on the or otherwise basis was adjourned until after determination of
the aforesaid questions.

B. The effect of Article 82

In most cases, constitutional challenges are founded on an

applicants claim that his or her constitutional rights have been violated. Thus,
the analysis usually begins by identifying the constitutional rights engaged. 15
However, this approach is inapplicable in the present case. This is because
Article 82 of the Basic Law operates to vest the power of final adjudication in the
Court of Final Appeal. It does not confer on parties to litigation any constitutional
right of appeal to the final court. As Li CJ pointed out:

... it is obvious that the intent of the Basic Law was not to give every party to every
dispute a right to have the dispute resolved by final adjudication by the Court. By its
very nature, the Court's power of final adjudication vested by art.82 calls for and indeed
requires regulation, which may include limitation. Such limitation is permitted by
implication, having regard to the nature of the power. It may be dealt with by the

14
Ma CJ, Tang and Fok PJJ, FAMV No 21 of 2016 (19 August 2016).
15
See Catholic Diocese of Hong Kong v Secretary for Justice (2011) 14 HKCFAR 754 at
65.
 -6-

enactment of statutes by the legislature or it may be dealt with by rules of court made
by the rules committee exercising subordinate legislative powers.16

Article 83 reflects this by providing that the structure, powers and

functions of the courts of the Hong Kong Special Administrative Region at all
levels shall be prescribed by law.

However, any restrictions on rights of appeal (eg, by finality

provisions confining appeals to intermediate courts) have a limiting effect upon
the Courts constitutional power of final adjudication and cannot be arbitrarily
imposed. As was held in Solicitor v Law Society:17

... The limitation imposed must pursue a legitimate purpose and there must be
reasonable proportionality between the limitation and the purpose sought to be achieved.
... it is the duty of the courts to review any legislation enacted which seeks to impose
any limitation on the power of final adjudication vested in the Court by art.82 and to
consider whether the limitation satisfies the proportionality test.

This approach is well-established and was endorsed by the Court in

Mok Charles v Tam Wai Ho.18 To apply it in the present case, one must first
ascertain precisely what (if any) restriction the legislature has enacted affecting
the Courts constitutional function of final adjudication. This requires the
relevant provisions to be construed.

C. Construction of the statutory provisions

C.1 The appellants argument

The appellant seeks to argue that on the true construction of the

relevant statutory measures, the finality provision in DCO section 63B does not
take effect:

16
Solicitor v Law Society of Hong Kong (2003) 6 HKCFAR 570 at 30.
17
At 31-32.
18
(2010) 13 HKCFAR 762 at 21-29, per Ma CJ.
 -7-

... as a matter of statutory construction, a Refusal of Leave, being a decision or order

of the CA, is a judgment as defined by s.19 of the Hong Kong Court of Final Appeal
Ordinance, Cap 484... , and is therefore within the jurisdiction of the CFA by virtue of
s.22(1)(b) of the HKCFAO ...; and thus BL82 is not engaged.19

The argument runs as follows:

(a) Section 22(1)(b) of the Courts statute (the HKCFAO)20 confers a

discretionary jurisdiction on the Court of Final Appeal to hear
appeals in the following terms:

An appeal shall lie to the Court ... at the discretion of the Court of
Appeal or the Court, from any judgment of the Court of Appeal in any
civil cause or matter, whether final or interlocutory, if, in the opinion of
the Court of Appeal or the Court, as the case may be, the question
involved in the appeal is one which, by reason of its great general or
public importance, or otherwise, ought to be submitted to the Court for
decision...

(b) HKCFAO section 19 provides:

In this Part, unless the context otherwise requires ... judgment

includes decree, order or decision...

(c) DCO section 63B purports to exclude appeals from a decision of

the Court of Appeal as to whether or not leave to appeal to it should
be granted.

(d) But such a decision comes squarely within HKCFAO section

22(1)(b) read together with section 19, and therefore is a decision
falling within the Courts discretionary jurisdiction, notwithstanding
what DCO section 63B says.

This argument involves two main propositions: (i) that section 63B
is inconsistent with section 22(1)(b); and (ii) that section 22(1)(b) is the
controlling provision which trumps section 63B. If it is accepted, then the first

19
Appellants Case 9 (Emphasis in the original).
20
Hong Kong Court of Final Appeal Ordinance (Cap 484).
 -8-

question on which leave was given does not arise and the second question must
be answered Yes. I am, however, unable to accept this argument.

C.2 Later law prevails

Assuming, for present purposes, that section 63B is inconsistent with

sections 19 and 22(1)(b) read together, it does not follow that section 63B is
overridden by the latter sections.

The scope of the Courts discretionary jurisdiction was established

by sections 19 and 22(1)(b) upon their enactment in HKCFAO on 1 July 1997.
The DCO amendments came later, enacted on 5 February 2008.21 They include
section 63(1), laying down the requirement for leave to appeal to the Court of
Appeal, replacing an earlier provision; and adding section 63B which excludes
any appeal from a decision of the Court of Appeal on the grant or refusal of leave
to appeal. Those amendments thus expressly exclude that class of decision by
the Court of Appeal from the ambit of section 22(1)(b).

There is no basis for thinking that section 63B has no effect. In so

far as it cannot be reconciled with section 22(1)(b), the rule is that the earlier
provisions give way to the later. Bennion states the principle as follows:

Where a later enactment does not expressly repeal an earlier enactment which it has
power to override, but the provisions of the later enactment are contrary to those of the
earlier, the later by implication repeals the earlier in accordance with the maxim leges
posteriores priores contrarias abrogant (later laws abrogate earlier contrary laws).22

It follows that section 63B is not somehow trumped by section

22(1)(b) but (subject to its constitutional validity) operates as a finality provision
qualifying the latter section. It is true that section 22(1)(b) was amended in

21
As part of the Civil Justice (Miscellaneous Amendments) Ordinance (Ord No 3 of 2008).
22
Oliver Jones, Bennion on Statutory Interpretation, 6th Ed (Lexis Nexis, 2013), p 279. The
qualification stated in the text regarding the maxim generalia secialibus non derogant (a
general provision does not derogate from a special one) is not applicable.
 -9-

2014.23 That was, however, a minor amendment to reflect abolition of appeals to

this Court as of right. 24 It merely substituted any judgment for any other
judgment since there was no longer a separate class of judgment entitling the
parties to appeal as of right. The 2014 amendment is not in any way inconsistent
with section 63B and does not impliedly override or qualify that section.

C.3 The reasoning in Lane v Esdaile

Quite apart from the lex posterior rule, a line of authority beginning
with Lane v Esdaile25 leads compellingly to the conclusion that sections 63(1),
63A(2) and 63B read together should be construed as investing with finality a
decision of the Court of Appeal refusing leave to appeal to itself from a first
instance judgment of the District Court.

Lane v Esdaile was concerned with a rule of court which relevantly

provided that no appeal lay to the Court of Appeal after the expiration of one year
without special leave of the Court of Appeal. 26 After a tortuous procedural
history, the appellants sought leave to appeal against the order of Kay J at first
instance made some three years earlier. The Court of Appeal refused leave.27
The appellants applied to the House of Lords for leave to appeal against such
refusal, relying on a statutory provision which stated: ... an appeal shall lie to the
House of Lords from any order or judgment of [the] Court of Appeal,28
arguing that refusal of leave was such an order or judgment.

23
Administration of Justice (Miscellaneous Provisions) Ordinance 2014, section 8(2).
24
By section 8(1).
25
[1891] AC 210.
26
Order LVIII r 15.
27
(1889) 40 Ch D 520.
28
Appellate Jurisdiction Act 1876, section 3.
 -10-

The House of Lords held that on a purposive construction of the

provisions, given the requirement to obtain the Court of Appeals leave to appeal
from the first instance judgment, that Courts refusal of leave was final and there
was no jurisdiction to entertain the appeal. Lord Halsbury LC stated:

... when I look not only at the language used, but at the substance and meaning of the
provision, it seems to me that to give an appeal in this case would defeat the whole
object and purview of the order or rule itself, because it is obvious that what was there
intended by the Legislature was that there should be in some form or other a power to
stop an appealthat there should not be an appeal unless some particular body pointed
out by the statute... [that is, the Court of Appeal29], should permit that an appeal should
be given.30

His Lordship pointed out31 that the rule was intended as a check to
unnecessary or frivolous appeals and held that allowing an appeal from a refusal
of leave to appeal would render the leave requirement absolutely illusory. Lord
Bramwell held that if a refusal of leave could be called an order at all, it is not
such an order as it was intended by the Statute of 1876 should be appealable.32
As Lord Macnaghten put it:

... according to the true construction of the Judicature Act and Orders, the Court of
Appeal are constituted the sole and final judges of the question whether an appeal to
them should or should not be admitted when the proposed appellant has allowed the
prescribed period to elapse, and therefore that there can be no appeal from the grant or
refusal of that indulgence.33

The House of Lords decision was succinctly summarised a year

later by Lord Esher MR in Ex p Stevenson34 who stated:

29
See 213.
30
At 211-212.
31
At 212.
32
At 213. Lord Herschell took the same view (at 214).
33
At 215-216. ... the Legislature intended that the matter should not go beyond the Court of
Appeal, and therefore they have used the words that leave is to be given ... per Lord Field
at 216.
34
Re Housing of the Working Classes Act 1890 Ex p Stevenson [1892] 1 QB 609 (CA) at 611.
 -11-

...the very nature of the thing really concludes the question; for, if, where a legal
authority has power to decide whether leave to appeal shall be given or refused, there
can be an appeal from that decision, the result is an absurdity, and the provision is made
of no effect.

As Lord Dyson MR pointed out in Sarfraz v Disclosure and Barring

Service,35 the reasoning of Lane v Esdaile has repeatedly been applied for more
than 100 years. Thus, giving the advice of the Privy Council, Lord Hoffmann
explained Lane v Esdailes approach to construction as follows:

Their Lordships consider that the principle in [Lane v Esdaile as explained in Ex parte
Stevenson], is that a provision requiring the leave of a court to appeal will by necessary
intendment exclude an appeal against the grant or refusal of leave, notwithstanding the
general language of a statutory right of appeal against decisions of that court. This
construction is based upon the nature of the thing and the absurdity of allowing an
appeal against a decision under a provision designed to limit the right of appeal.36

The aforesaid approach was adopted by the Appeal Committee in

HLF v MTC,37 where the Court of Appeal had refused to give the applicant leave
to appeal (required by DCO section 63) against ancillary relief orders made at
first instance in matrimonial proceedings. The Court of Appeal also refused leave
to appeal to this Court against its aforesaid decision, prompting the applicant to
apply to the Appeal Committee for leave to appeal. DCO section 63B had not
yet been enacted, so that no express finality provision was in existence. Just as
in the House of Lords in Lane v Esdaile, the question was whether, given the
requirement for leave to appeal laid down by section 63(1) and the Court of
Appeals refusal of leave, an application for leave to appeal to the Court of Final
Appeal against the refusal by the Court of Appeal to give leave to appeal from a
District Court judgment to itself [could] be entertained.38

35
[2015] 1 WLR 4441 (CA) at 25.
36
Kemper Reinsurance Co v Minister of Finance (Bermuda) [2000] 1 AC 1 (PC) at 13.
37
(2004) 7 HKCFAR 167. Followed by the Appeal Committee in Lau Luen Hung Thomas v
Insider Dealing Tribunal (2009) 12 HKCFAR 955 at 5.
38
At 15.
 -12-

Adopting the reasoning in Lane v Esdaile, and noting that no

constitutional challenge was being mounted, the Appeal Committee concluded
that no appeal lay to this Court. In so holding, I stated:

Where the Court of Appeal refuses leave to appeal, it declines to hear the appeal at all
and no judgment of that court, whether final or interlocutory, comes into being.
Therefore no appeal lies under s.22 to the Court of Final Appeal ...39

It would have been preferable to state (as their Lordships did in Lane v Esdaile)
that no appealable judgment comes into being.

In my view, the approach to construction in Lane v Esdaile is

entirely apt in the present case. Not only does the DCO (by section 63(1)) lay
down a requirement of obtaining the Court of Appeals leave to appeal from the
first instance judgment, section 63B expressly provides for finality where such
leave is refused. It is thus unnecessary in the present case to imply a finality
provision by a process of purposive construction. Sections 63(1), 63A(2) and
63B are plainly intended, inter alia, to enable the Court of Appeal to filter out
unnecessary, unmeritorious or frivolous would-be appeals. For this Court to
entertain an appeal against the Court of Appeals refusal of leave to appeal to
itself would be to render those sections illusory and would result in absurdity.
Such a construction of HKCFAO section 22(1)(b) cannot have been intended.

For the foregoing reasons, I conclude that on its true construction,

DCO section 63B operates as a finality provision excluding appeals to this Court
against a refusal by the Court of Appeal to grant leave to appeal from a decision
of a District Judge. I turn then to the question whether such a finality provision
is constitutionally valid.

39
At 23.
 -13-

D. Constitutional validity - Proportionality

A finality provision which prevents a class of cases from reaching

the Court of Final Appeal limits the Courts exercise of the power of final
adjudication vested in it by Article 82 of the Basic Law. The combined effect of
DCO sections 63(1), 63A(2) and 63B is to create such a limitation. It is a
constraint which has to be justified on a proportionality analysis, as held in
Solicitor v Law Society and Mok Charles.40

This Courts approach to proportionality was recently reviewed in

Hysan Development Co Ltd v Town Planning Board. 41 In summary, the
proportionality test in the present case requires the limitation on this Courts
function of final adjudication (i) to pursue a legitimate aim; (ii) to be rationally
connected to advancing that aim; (iii) to be no more than is necessary to
accomplish that aim;42 and (iv) to strike a fair balance between the general interest
and any individual rights intruded upon.

D.1 Steps (i) and (ii): Legitimate aims and rational connection

In identifying the aim of the restriction with a view to considering

its legitimacy and the rationality of the measures adopted to achieve it, section
63B should not be viewed in isolation. The statutory purpose emerges from the
scheme created by sections 63(1), 63A(2) and 63B in the context of other relevant
provisions of the DCO.43

40
Discussed in Section B above.
41
(2016) 19 HKCFAR 372 in Sections E, F and G of the judgment.
42
This is not a case in which the manifestly without reasonable foundation standard should
be applied, as discussed in the Hysan case at Section G of that judgment.
43
In particular DCO sections 32 and 63A(1)(b) and Order 1A r 1(c) and (d) of the Rules of
the District Court discussed below.
 -14-

The scheme has two broad aims. First, in line with the Lane v
Esdaile line of authorities, by having the Court of Appeal screen out cases which
have no reasonable prospects of success on appeal, it promotes the proper and
efficient use of judicial resources and the avoidance of oppressive and
unproductive appeals. It avoids the squandering of resources by the Court of
Appeal or this Court on hearing appeals which cannot be expected materially to
benefit either party, merely causing delays to others in the queue waiting for
suitable appeals to be dealt with. By filtering out unfit cases, the scheme aims to
enable this Court to play its proper role. As Li CJ pointed out in Solicitor v Law
Society:44

The limitations serve a legitimate purpose namely, to prevent the Court at the apex of
the judicial system from being unduly burdened with appeals so as to enable it to focus
on appeals, the judgments on which will be of importance to the legal system.

Secondly, in the context of a court of limited jurisdiction, the

statutory scheme aims to maintain reasonable proportionality between litigation
costs and the amounts at stake by restricting the available tiers of appeal.

The aim of economic proportionality in litigation is generally

recognized. Thus, the Rules of the District Court state as two of their underlying
objectives, promotion of a sense of reasonable proportion and procedural
economy in the conduct of proceedings and ensuring that the resources of the
Court are distributed fairly.45 As part of the scheme for regulating appeals, the
DCO empowers the Judge or the Court of Appeal to subject grant of leave to
appeal to such conditions as ... [they consider] necessary in order to secure the
just, expeditious and economical disposal of the appeal.46 It should be noted in

44
At 36.
45
RDC Order 1A r 1(c) and (f).
46
DCO section 63A(1)(b).
 -15-

this context that the District Courts general civil jurisdiction is limited to claims
which do not exceed $1 million.47

The statutory restrictions seek to avoid the kind of situation that

arose in Piglowska v Piglowski,48 where the modest amount of a couples joint
matrimonial assets in issue was wholly exceeded by the costs of successive
appeals. Lord Hoffmann described the situation as follows:

... there is the principle of proportionality between the amount at stake and the legal
resources of the parties and the community which it is appropriate to spend on resolving
the dispute. In a case such as the present, the legal system provides for the possibility
of three successive appeals from the decision at first instance. The first is as of right
and the second and third are subject to screening processes which themselves may
involve more than one stage. If one includes applications for leave, the facts of this case,
by the time it reached the Court of Appeal, had been considered by five differently
constituted tribunals. This cannot be right. To allow successive appeals in the hope of
producing an answer which accords with perfect justice is to kill the parties with
kindness.49

His Lordship added:

... even if a case does raise an important point of practice or principle, the Court of
Appeal should consider carefully whether it is fair to have it decided at the expense of
parties with very limited resources or whether it should wait for a more suitable
vehicle.50

Similar points were made in Hong Kong Housing Society and

Secretary for Justice v Wong Nai Chung,51 and in HLF v MTC.52

47
DCO section 32.
48
[1999] 1 WLR 1360 (HL).
49
At 1373.
50
At 1373-1374.
51
HCMP 880/2009 (unreported, 22 September 2010) (CA) at 25 and 31.
52
(2004) 7 HKCFAR 167 at 26.
 -16-

It is plain that the two broad aims discussed above are legitimate
aims and that the restriction of rights of appeal by sections 63(1), 63A(2) and 63B
is rationally connected to their achievement.

D.2 Step (iii): No more than necessary

Two main arguments have been advanced on the appellants behalf

to contend that the finality provision in the present case goes disproportionately
beyond what is necessary.

The first is the suggestion that section 63B imposes an absolute ban
so that, in line with this Courts decisions in Solicitor v Law Society of Hong
Kong 53 and Mok Charles v Tam Wai Ho, 54 it ought to be held to fail the
proportionality test. That argument must be rejected.

In Solicitor v Law Society, the restriction contained in section 13(1)

of the Legal Practitioners Ordinance55 as it then stood was indeed absolute. It
provided that an appeal would lie from the Solicitors Disciplinary Tribunal to the
Court of Appeal and that the decision of the Court of Appeal on any such appeal
shall be final.56 As Li CJ pointed out,57 the exclusion of further appeals was
absolute and precluded any appeal to this Court even if the discretionary criteria
under HKCFAO section 22(1)(b) were satisfied. That total ban was held to be
disproportionate:

... s.22(1)(b) permits an appeal from the Court of Appeal only in narrowly defined
circumstances: where the question is one which should be submitted to the Court by
reason of its great general or public importance, or otherwise. The total ban imposed by
the finality provision where questions of this order of importance arise cannot, in my

53
(2003) 6 HKCFAR 570.
54
(2010) 13 HKCFAR 762.
55
Cap 159.
56
(2003) 6 HKCFAR 570 at 5.
57
Ibid at 39.
 -17-

view, be said to be reasonably proportionate to any legitimate purpose which may

underlie the finality provision.58

The same is true of the restriction imposed by section 67(3) of the

Legislative Council Ordinance (LCO)59 as it stood when its proportionality was
examined in Mok Charles v Tam Wai Ho. That section provided that at the end
of the trial of an election petition in the Court of First Instance, that Court:

... must certify the determination of the Court in writing. ... The determination as
certified is final as to the matters at issue concerning the election petition.60

Section 14(3)(c) of the High Court Ordinance 61 provides that no

appeal shall lie to the Court of Appeal from a judgment or order of the Court of
First Instance, where it is provided by any Ordinance or by rules of court that the
same is to be final. Thus, the effect of section 14(3)(c) in combination with LCO
section 67(3) was to exclude appeals from decisions of the Court of First Instance
regarding election petitions. As was the case in Solicitor v Law Society, that
provision was absolute, there having been no mechanism to vet the arguability or
importance of any potential appeal. It was held to be a disproportionate restriction
and thus constitutionality invalid.

Ma CJ stated:

... it is important to understand the nature of the restriction contained in s.67(3). That
provision not merely restricts an appeal, it actually eliminates it: under no
circumstances can an appeal be launched.62

His Lordship added:

... s.67(3) goes much further than is necessary to deal with the said aim of speedy
determination in election petitions. ... the nature of the restriction is absolute: there is

58
Ibid at 40.
59
Cap 542.
60
(2010) 13 HKCFAR 762 at 14(7).
61
Cap 4.
62
(2010) 13 HKCFAR 762 at 52.
 -18-

simply no avenue of appeal, however much in error the Court of First Instance may
have been. Further, the following point was raised by Sir Anthony Mason NPJ in the
course of submissions that, for my part, has considerable significance: it is perhaps easy
to see the possibility of points of constitutional importance being raised in the course
of an election petition and yet the effect of a provision such as s.67(3) is that no
appellate court (and in particular the Court of Final Appeal) will have an opportunity
to deal with them.63

In the present case, the DCO provisions limiting the right of appeal
plainly do not erect a total ban on appeals. The Court of Appeal is entrusted with
vetting the prospects of a potential appeal and enjoined to refuse leave unless the
criteria specified in section 63A(2) are met. Conversely, if the application relates
to an appeal which does have a reasonable prospect of success or in respect of
which there is some other reason in the interests of justice for hearing the appeal,
the Court of Appeal may be expected to grant leave. If leave is granted and the
appeal is determined, the parties could, if so advised, apply for leave to appeal to
this Court. If the section 22(1)(b) criteria are satisfied, leave could be expected
to be granted and the final appeal duly heard by the Court in the exercise of its
power of final adjudication.

The appellants second argument takes objection to the fact that it is

the Court of Appeal rather than the Court of Final Appeal itself which decides
what cases should be excluded as having no reasonable prospects of appeal. It
argues that this Court has its own filtering rules comprising HKCFAO section
22(1)(b) and rule 7 of its Rules64 which the Court ought itself to operate in the
exercise of its power of final adjudication. The contention is that allocating the

63
Ibid at 61-62. The Court also noted that no such finality provision existed in respect of
the elections under the Chief Executive Election Ordinance (Cap 569).
64
Hong Kong Court of Final Appeal Rules (Cap. 484A) Rule 7 provides for disposal of leave
applications on the papers: (1) Where the Registrar is of the opinion either on the
application of the Respondent or of his own motion that an application discloses no
reasonable grounds for leave to appeal, or is frivolous or fails to comply with these Rules,
he may issue a summons to the applicant calling upon him to show cause before the Appeal
Committee why the application should not be dismissed. (2) The Appeal Committee may,
after considering the matter, order that the application be dismissed or give such other
directions as the justice of the case may require.
 -19-

screening process to the Court of Appeal in itself constitutes an unnecessary and

disproportionate restraint on the Courts power of final adjudication.

Mr Martin Lee SC65 went so far as to argue that any rule which
permits any case (save for decisions of a purely interlocutory nature) to be
screened out as unfit for appeal by an intermediate court would constitute a
disproportionate derogation from the Courts power of final adjudication. He did
not shrink from the logic of this argument and made the extravagant submission
that the Court of Final Appeal, by its Appeal Committee, was bound to vet for
itself every application for leave to appeal, including applications originating in
decisions of tribunals like the Small Claims Tribunal.

That argument involves a complete departure from the

proportionality analysis. The DCOs restriction of the Courts power of final
adjudication by assigning the filtering process to the Court of Appeal is the
starting-point in the proportionality analysis, raising questions as to the aims,
rationality and proportionality of that measure. It is not, as Mr Lee SC submitted,
the end of the inquiry, in itself justifying a conclusion of unconstitutionality.

The appellants argument thus ignores or loses sight of the legitimate

aims identified above as the first step of the analysis, namely, the aims of
promoting the proper use of judicial resources, the proper role of the Court of
Final Appeal and economic proportionality in litigation. And in extending the
argument to cover applications for leave to appeal from all judicial tribunals, it
ignores other important legitimate aims. For example, rules which limit rights of
appeal from tribunals like the Small Claims and Labour Tribunals are aimed in
part at fostering an equality of arms between parties such as well-resourced
employers or businesses on the one hand and employees and consumers with

65
Appearing with Ms Queenie Ng and Mr Lee Siu Him for the appellant.
 -20-

modest means on the other. Such rules seek to provide a cheap and quick means
of resolving small claims. Access to justice afforded by such tribunals would be
wholly undermined if a well-resourced litigant were able to drag poorer
opponents up successive appellate levels all the way to this Courts Appeal
Committee, requiring unaffordable costs to be incurred and greatly delaying
resolution of their claims.

Mr Lee SCs argument fails to address the crucial question at step

(iii), that is, whether the relevant statutory measures go beyond what is reasonably
necessary to accomplish the legitimate aims identified. It fails in particular to
examine that question with regard to the legitimate aim of preventing the apex
Court from being unduly burdened with appeals so as to enable it to concentrate
on appeals of importance to the entire legal system. The appellants contention
that all applications for leave to appeal should be allowed to proceed unrestricted
from the courts or tribunals below to be adjudicated upon by this Court
necessitates abandonment of that aim. The appellants objection to the appellate
process being halted at the level of the Court of Appeal is thus not an argument
about the proportionality of the statutory measures designed to achieve the
aforesaid aim but an argument which disavows that legitimate aim itself. It
misapprehends the issue at the core of the proportionality analysis.

D.3 Step (iv) the overall balance

The fourth step in the proportionality analysis is not of direct

significance in the present case. No individual constitutional rights are infringed.
The filtering mechanism, while a restriction on the Courts power of final
adjudication, is beneficial since it screens out unfit applications for leave to
appeal, helping to ensure that the Court of Final Appeal is able to exercise that
power effectively. It is in the general interest to avoid the waste of judicial
resources and to promote economy in litigation. It is beneficial both to the parties
 -21-

and to the courts that appeals which have no reasonable prospects of success
should not be allowed to proceed.

E. Conclusion

For the aforesaid reasons, I conclude that the restrictions in question

do not go beyond what is reasonably necessary for the achievement of the
legitimate aims identified. They are proportionate and constitutionally valid
limitations on the Courts power of final adjudication. The questions on which
leave was given should therefore be answered in the negative. The appeal was
accordingly dismissed and the appellant ordered to pay the respondents costs.66
It follows that restoring the adjourned aspects of the leave application would
serve no purpose.

Mr Justice Tang PJ:

I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Fok PJ:

I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Gleeson NPJ:

I agree with the judgment of Mr Justice Ribeiro PJ.

66
It was agreed that there would be no order as to the Interveners costs.
 -22-

(Geoffrey Ma) (R A V Ribeiro) (Robert Tang)

Chief Justice Permanent Judge Permanent Judge

(Joseph Fok) (Murray Gleeson)

Permanent Judge Non-Permanent Judge

Mr Martin Lee SC, Ms Queenie Ng and Mr Lee Siu Him, instructed by K. H. Lam
& Co., for the Defendant (Appellant)

Mr Lawrence Ng, instructed by Lam & Partners, for the Plaintiff (Respondent)

Mr Wong Yan Lung SC, instructed by the Department of Justice, and Mr William
Liu SGC, of that Department, for the Intervener (Intervener)