The right of appeal to the Court of Final Appeal (CFA) with respect to final judgments of the Court of Appeal amounting to HK$1 million or more has been repealed as of 24 December 2014. Many readers in other common law jurisdictions might be surprised to learn that there was such a second right of appeal, given that civil appeals to the final appeal court in most principal common law jurisdictions are subject to an exercise of judicial discretion; for example, appeals that raise an issue of public importance. In this regard, final appeals in civil cases in Hong Kong now fall into line with those other jurisdictions.
The CFA is Hong Kong's highest court with respect to all appeals, both civil and criminal. The CFA has been an unqualified success since it was established on Hong Kong's reunification with Mainland China in 1997. It has been at the heart of Hong Kong's "one country, two systems".
The CFA is usually made-up of the Chief Justice, the three Permanent Judges (PJs) and one Non-Permanent Judge (NPJ) selected from a panel of approximately eighteen (over half of whom are eminent sitting or retired judges from other principal common law jurisdictions). It is not unknown for two NPJs to sit in the CFA at the same time.
The establishment of the CFA was an important part of the negotiations prior to Hong Kong's reunification with Mainland China. The passage of the original Court of Final Appeal Bill was closely watched by the legal profession, resulting in (for example) a rare occasion of the solicitors' profession in Hong Kong calling an extraordinary general meeting of its members. Besides being provided for in Hong Kong's Basic Law, the CFA has its own Ordinance (the Court of Final Appeal Ordinance - CFAO) and Rules.
Applications for permission to appeal to the CFA are made in the first instance to the Court of Appeal and, if refused, to the Appeal Committee of the CFA, comprising three judges; normally the Chief Justice and two PJs or the three PJs.
The CFA is a busy court. In recent years, it has dealt with well in excess of one hundred applications for permission to appeal per year and heard on average approximately thirty to forty substantive appeals per year.(1) The majority of the substantive appeals relate to civil cases. Of the applications for permission to appeal in civil cases, approximately a third were disposed of on the basis that they (among other things) disclosed no reasonable grounds or were frivolous.(2)
Much time was also taken up by the CFA reviewing appeal papers in unmeritorious appeals because appellants were exercising their right of appeal where they met the financial threshold. Appellants in civil cases already have a right of appeal to the Court of Appeal with respect to final judgments or orders (and with respect to a limited category of interlocutory matters).(3)
The Administration of Justice (Miscellaneous Provisions) Ordinance 2014 (AJMPO) came into effect on 24 December 2014. As its name suggests, the AJMPO amends various legislative provisions, including the repeal of Section 22(1)(a) of the CFAO.(4) It was section 22(1)(a) that entitled appellants in civil cases to appeal as of right to the CFA if the final judgment of the Court of Appeal was of a value of HK$1 million or more. That second appeal as of right in civil cases has now been removed.
Therefore, all appeals from final judgments of the Court of Appeal handed down in civil cases on or after 24 December 2014 now require permission to appeal to the CFA. That permission is subject to the discretion of the Court of Appeal or the Appeal Committee of the CFA and the appeal raising an issue of great general or public importance or "otherwise" justifying permission to appeal to the CFA.(5)
The AJMO passed through Hong Kong's Legislative Council without much controversy (something of a rarity in the current environment). The removal of the appeal as of right to the CFA had the blessing of the Chief Justice and was supported by the legal profession in Hong Kong; both the solicitors and the barristers' branches. (6)
The right of appeal to Hong Kong's highest court in cases involving a certain monetary threshold was something of an anomaly compared to other principal common law jurisdictions, such as the United Kingdom, Australia and New Zealand.(7) It was also a legacy from civil appeals to the Judicial Committee of the Privy Council before 1997.
With the repeal of the right of appeal to the CFA in respect of judgments for an amount of HK$1 million or more there will be fewer unmeritorious appeals. This will aid finality in civil litigation; an important principle. More of the CFA's time can be spent on those appeals that raise an issue of great general or public importance or that otherwise ought to be determined by the CFA; thereby developing local jurisprudence.
The "or otherwise" limb for the grant of permission to appeal to the CFA is still developing and (in our opinion) could be interpreted less strictly by the Appeal Committee of the CFA. This alternative limb is thought to be exceptional but allows the CFA to correct a grave injustice. Finality in civil litigation is important but not at the expense of deciding cases justly. Writing in its Position Paper in August 2012, the Hong Kong Bar Association had this to state:
"It is, however, apparent that in the first 15 years of the CFA's existence, a significant proportion of appeals from the CA have been allowed following the discretionary grant of leave to appeal. This indicates that a significant number of cases are being wrongly decided by the CA".(8)
As a result of all this, appellants in civil cases in Hong Kong now have one shot at appeal as of right; a second shot requires permission.