Abolition of civil appeals 'as of right' to the Hong Kong Court of Final Appeal

The Administration of Justice (Miscellaneous Provisions) Ordinance 2014 came into effect on 24 December 2014. It amended various Ordinances with a view to improve various court-related matters. The most significant of these amendments is the repeal of section 22(1)(a) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (the HKCFAO).

Previously, sections 22(1)(a) and (b) of the HKCFAO provided for rights of appeal to the Court of Final Appeal (the CFA) in civil cases:

• An appeal lay to the CFA 'as of right' (i.e. without the need for Court permission) from a final judgement of the Court of Appeal where the matter in dispute amounted to HK$1 million or more (section 22(1)(a)).
• In all other cases, appeals to the CFA would only be allowed if the Court of Appeal or the CFA granted leave on the ground that the appeal involved a question which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision (section 22(1)(b)).

Following the repeal of section 22(1)(a), all civil appeals to the CFA are subject to discretionary leave from either the Court of Appeal or the CFA, regardless of the amount involved. This change applies to Court of Appeal final judgments (whether pronounced orally or delivered in writing) on or after 24 December 2014.

This is a significant development and arguably the most important change to the rules applying to the CFA since its establishment in 1997. The Judiciary gave the following reasons for the change:

• Linking a right of appeal to an arbitrary financial limit was objectionable as a matter of principle, as this meant that litigants who were involved in litigation beyond the threshold limit in effect had more rights than litigants with smaller claims, regardless of the merits of their cases.
• The 'as of right' appeal system led to situations where unmeritorious appeals had to be heard by the CFA. This prevented the CFA from hearing genuine and much more meritorious appeals in good time.
• Most other common law jurisdictions, including England and Wales, Australia and New Zealand, require that leave be obtained before appeals can be made to their highest appellate courts.

Historically, 'as of right' appeals had roots in the system of appeals to the Privy Council before 1 July 1997. Singapore and Ireland are among the few common law jurisdictions that provide for an automatic right of appeal to the highest appellate court in civil cases. However, in each of these jurisdictions there is no equivalent intermediate court of appeal between the court of first instance and the highest appellate court. The abolition of 'as of right' appeals hence aligns Hong Kong's appeal system with the mainstream common law world.

It is worth noting that, under section 22(1)(b) of the HKCFAO, discretionary leave to appeal to the CFA may be granted otherwise than for reasons of "great general or public importance". Existing case law has established the "or otherwise" provision as an exceptional one with a limited scope of application. It remains to be seen what impact the abolition of 'as of right' appeals to the CFA might have on the jurisprudential development on this "or otherwise" provision.

If you wish to discuss or would like any further information, please contact Gareth Thomas or Dominic Geiser of our Hong Kong Dispute Resolution team.