David Smyth February 3 2015 Civil appeals – one shot as of right only RPC | Litigation - Hong Kong David Smyth Litigation SummaryBackgroundLegislationCommentSummaryThe right of appeal to the Court of Final Appeal with respect to final judgments of the Court of Appeal amounting to HK$1 million or more has been repealed as of December 24 2014.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 (eg, 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.BackgroundThe Court of Final Appeal is Hong Kong's highest court with respect to all appeals, both civil and criminal. It 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 Court of Final Appeal is usually made up of the chief justice, three permanent judges and one non-permanent judge selected from a panel of approximately 18 (more than half of whom are eminent sitting or retired judges from other principal common law jurisdictions). It is not unknown for two non-permanent judges to sit in the Court of Final Appeal at the same time.The establishment of the Court of Final Appeal 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 Court of Final Appeal has its own ordinance (the Court of Final Appeal Ordinance) and rules.Applications for permission to appeal to the Court of Final Appeal are made in the first instance to the Court of Appeal and, if refused, to the Appeal Committee of the Court of Final Appeal, which comprises three judges (normally the chief justice and two permanent judges or three permanent judges).The Court of Final Appeal is a busy court. In recent years, it has dealt with well in excess of 100 applications for permission to appeal per year and heard on average approximately 30 to 40 substantive appeals per year.(1) Most of the substantive appeals relate to civil cases. Of the applications for permission to appeal in civil cases, approximately one-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 Court of Final Appeal in 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)LegislationThe Administration of Justice (Miscellaneous Provisions) Ordinance 2014 came into effect on December 24 2014. As its name suggests, it amends various legislative provisions, including the repeal of Section 22(1)(a) of the Court of Final Appeal Ordinance.(4) Section 22(1)(a) entitled appellants in civil cases to appeal as of right to the Court of Final Appeal 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 of final judgments of the Court of Appeal handed down in civil cases on or after December 24 2014 now require permission to appeal to the Court of Final Appeal. That permission is subject to the discretion of the Court of Appeal or the Appeal Committee of the Court of Final Appeal, and the appeal raising an issue of great general or public importance "or otherwise" justifying permission to appeal to the Court of Final Appeal.(5)Comment The Administration of Justice (Miscellaneous Provisions) Ordinance 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 Court of Final Appeal had the blessing of the chief justice and was supported by the legal profession in Hong Kong (both the solicitors' and 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 Court of Final Appeal 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 Court of Final Appeal's time can be spent on appeals that raise an issue of great general or public importance or that otherwise should be determined by the Court of Final Appeal, thereby developing local jurisprudence.The "or otherwise" limb for the grant of permission to appeal to the Court of Final Appeal is still developing and could be interpreted less strictly by the Appeal Committee of the Court of Final Appeal. This alternative limb is thought to be exceptional, but allows the Court of Final Appeal to correct a grave injustice. Finality in civil litigation is important, but not at the expense of deciding cases justly. In its August 2012 Position Paper on Rights of Appeal to the Court of Final Appeal in Civil Matters, the Hong Kong Bar Association stated:"It is, however, apparent that in the first 15 years of the CFA's existence, a significant proportion of appeals from the CA [Court of Appeal] 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.For further information on this topic please contact David Smyth or Robert Rhoda at Smyth & Co in association with RPC by telephone (+852 2216 7100) or email ([email protected] or [email protected]). The RPC website can be accessed at www.rpc.co.uk.Endnotes (1) Civil and criminal cases. Hong Kong Judiciary Annual Reports 2011 to 2014 (up to September 30 2014), available at www.judiciary.gov.hk.(2) CFA Rules, Rule 7.(3) High Court Ordinance, Section 14 ("Appeals in civil matters") and Section 14AA ("Leave to appeal required for interlocutory appeals"), and Rules of the High Court, Order 59, Rule 21 ("Judgments and orders to which Section 14AA(1) does not apply").(4) Section 8 of the Administration of Justice (Miscellaneous Provisions) Ordinance.(5) Section 22(1)(b) of the Court of Final Appeal Ordinance.(6) The Law Society of Hong Kong Consultation Paper on the "CFA Right of Appeal", August 1 2012; Hong Kong Bar Association Position Paper on "Rights of Appeal to the Court of Final Appeal in Civil Matters", August 10 2012.(7) Common law jurisdictions that are different tend not to have an intermediate appellate court.(8) Hong Kong Bar Association Position Paper on Rights of Appeal to the Court of Final Appeal in Civil Matters, paragraph 7.Warren Ganesh assisted in the preparation of this update.