CHOW SHUN YUNG v. WEI PIH STELLA AND ANOTHER

FAMV No. 2 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 2 OF 2003 (CIVIL)

(On Application for Leave to Appeal from a matter in
the Court of Appeal listed as HCCA No. 780 of 1998)

_______________________

_______________________

_______________________

D E C I S I O N

_______________________

Mr Justice Ribeiro PJ:

1. This is the unanimous decision of the Appeal Committee.

The present application

2. On 4 January 2003, the applicant sought leave to appeal to the Court of Final Appeal against a decision of the Court of Appeal. On 16 January, the Registrar of the Court of Final Appeal ("the Registrar") issued a summons under rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484 ("Rule 7" of "the Rules") stating his opinion that the application discloses no reasonable grounds for leave to appeal and requiring the applicant to show cause before the Appeal Committee why the application should not be dismissed.

3. This summons was accompanied, as generally is the practice, by Guidance Notes which informed the applicant that cause should be shown by filing written submissions which would be considered by the Appeal Committee without an oral hearing.

4. Such written submissions were filed by the applicant on 27 January and supplemented on 4 March. At the same time as filing the initial submissions, the applicant issued a motion returnable before Mr Justice Chan PJ, as a single Permanent Judge of the Court of Final Appeal, seeking to set aside the Registrar's Rule 7 summons. That motion was dismissed by Chan PJ on 27 February and, on 14 March 2003, the applicant issued a fresh motion returnable before this Committee, seeking to renew his challenge to the Rule 7 summons and to discharge Chan PJ's order.

5. The applicant appeared in person and his submissions, both written and oral, were of assistance. We also had the benefit of submissions by Mr S H Kwok, of counsel, whose pro bono services as amicus curiae pursuant to the scheme operated by the Bar Association were offered to, and gratefully accepted by the Appeal Committee.

Rule 7 and the current practice

6. Rule 7 states as follows :-

"(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."

7. In practice, Rule 7, which applies to both civil and criminal matters, currently operates as follows :-

7.1 The Registrar scrutinises all applications filed for leave to appeal. As required by Rule 4(1)(b) and (c) of the Rules, all such applications must "state succinctly all such facts and matters as may be necessary to enable the Appeal Committee to consider whether leave ought to be granted; and deal with the merits of the case only so far as is necessary to explain the grounds upon which leave to appeal is sought."

7.2 Where an application is considered by the Registrar to disclose no reasonable grounds for leave to appeal, or to be frivolous or to fail to comply with the Court's rules , the Registrar issues a summons stating his view and calling on the applicant within a stated period to show cause why the application should not be dismissed, as occurred in the present case.

7.3 As indicated above, the practice is for the applicant who wishes to show cause to be required to do so in writing.

7.4 The Registrar has no power to determine the application for leave to appeal. After having given the applicant an opportunity to show cause, the leave application, including any written submissions intended to show cause, is considered by the Appeal Committee comprising three members.

7.5 The Appeal Committee may or may not agree with the Registrar's view. If it does not agree, it gives directions that the application should proceed to an oral hearing where the question whether leave to appeal should be granted is determined after argument.

7.6 If the Appeal Committee agrees that the application for leave to appeal is objectionable on a Rule 7 ground, the practice ( now being challenged ( is to dismiss the application without any oral hearing and without giving any reasons for the dismissal beyond referring to one or more of those grounds . Thus, the order may, for instance, state that the application "discloses no reasonable grounds for leave to appeal".

7.7 A determination under Rule 7 dismissing the application is posted to the applicant or his solicitors and posted on the notice board in the public precincts of the Court.

7.8 By virtue of section 18(3) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 ("the Ordinance"), the decision of the Appeal Committee is final and not itself subject to appeal.

The applicant's challenge

8. The applicant's main argument is that it is unlawful for the Registrar to restrict an applicant to written submissions when showing cause in response to a Rule 7 summons and that an applicant is entitled to an oral and public hearing of this application for leave to appeal before the Appeal Committee. He argued that Rule 7 itself does not authorize such a restriction and that any contrary view would be inconsistent with other provisions in the Rules, especially rules 9, 10 and 12, as further demonstrated by rules 13(3) and 18(3) which make express provision regarding hearings. He also contended that treating Rule 7 as authorizing leave applications to be determined without a hearing is inconsistent with sections 18(2) and 47(2) of the Ordinance. Some of these points were also touched upon by the amicus.

The position of the amicus

9. Mr Kwok principally addressed certain constitutional points (some of which were also mentioned in the applicant's written submissions). Mr Kwok stressed the constitutional importance of the right to a fair and public hearing ("the right to a hearing") protected by article 10 of the Bill of Rights ("BOR 10") but recognized that such right was not absolute and accepted that it did not necessarily imply an oral hearing and also that it could validly be limited by laws promulgated on legitimate grounds. However, he submitted that by virtue of article 39 of the Basic Law ("BL 39"), any limitation to the right to a hearing must be "prescribed by law". He further submitted that such limitation had to be clear and that Rule 7(2) might not be couched in sufficiently clear terms for this purpose.

What is not before the Appeal Committee

10. It should be made clear that the question whether leave to appeal should be granted has not yet been determined since the applicant's challenge to the Rule 7 summons intervened before the matter proceeded for consideration by the Appeal Committee. It should also be made clear that the aforementioned question is not presently before the Appeal Committee. The sole question we are concerned with, arising on the applicant's motion, is whether the manner in which Rule 7 operates is lawful and constitutional.

11. The applicant also criticised the basis on which Chan PJ dismissed his earlier motion, contending that his Lordship had exceeded the powers of a single Permanent Judge, misconstrued Rule 7, and so forth. As the Appeal Committee is not constrained in the same way that a single judge is and as the applicant has been able to put all his points concerning Rule 7 directly to the Committee, those contentions have been overtaken by the present proceedings. The Appeal Committee is concerned to determine the points raised on their merits. Nothing is served by re-visiting the way similar points were presented and dealt with before the single Permanent Judge.

Construction of Rule 7

12. It is true that Rule 7(2) does not in express terms provide that the Registrar should require an applicant who wishes to show cause to do so by written submissions; nor does it say that the Appeal Committee should dispose of applications caught by Rule 7(1) without a hearing. However, in our view, reading Rule 7 in the context of the Rules, it is clear that this arrangement is intended and authorized in appropriate cases.

13. It is clear from Rule 7 that its purpose is to prevent an applicant from abusing the Court's procedure by lodging an application for leave to appeal which is objectionable because it does not disclose any reasonable grounds for leave to appeal or is frivolous or fails to comply with the Rules. As required by Rule 4(1)(b) and (c), the applicant must in the relevant Form set out "all such facts and matters as may be necessary to enable the Appeal Committee to consider whether leave ought to be granted". This Rule therefore envisages that the papers filed should sufficiently show an arguable case.

14. If, considering the papers filed in the application for leave and the applicant's response to the Registrar's request to show cause, the Appeal Committee is of the view that it is not objectionable, the scheme of the Ordinance and the Rules is for that application to proceed to an oral and public hearing before the Appeal Committee, which exercises the power of the Court to hear and determine such applications for leave to appeal. Where, however, having considered those materials, the Appeal Committee considers that the application for leave is objectionable, then Rule 7 is plainly designed to prevent the application progressing further and an order is made dismissing the application.

15. In our view, it would to a large extent defeat Rule 7's purpose to construe it as requiring the showing of cause to be at an oral hearing rather than by written submissions.

15.1 As indicated above, Rule 4(1)(b) and (c) requires an applicant from the application's outset to set out the facts and matters from which an arguable case for leave to appeal appears on the papers filed. Where Rule 7(1) applies, that rule affords the applicant a chance to make good the viability which the papers originally filed fail to demonstrate. This second chance ought properly to be seen as a chance to repair ( on paper ( a deficiency in the papers filed. There is no basis for thinking that the Rules intend to allow an applicant who cannot demonstrate an arguable case for leave to appeal on paper to vex either the respondent or the Court at a hearing in the hope that he might be able to show cause orally.

15.2 Secondly, where an application is caught by Rule 7(1), the applicant has prima facie no claim to be allowed to proceed as if his was a properly arguable application. It makes no sense to construe Rule 7 as having set up a special summons procedure for dealing with such objectionable categories only for such applications to proceed in any event to an oral hearing before the Appeal Committee. Such a construction cuts across the evident intention of Rule 7 to minimise wastage of the Court's and the other party's resources on hopeless or abusive applications for leave to appeal.

* Is this construction inconsistent with the Ordinance or any of the other Rules?

16. It was suggested in argument that if Rule 7 was to be construed as authorizing disposal of leave applications without a hearing, it would be inconsistent with various sections in the Ordinance and other provisions of the Rules. We cannot accept that submission. The provisions relied on are examined below. However, it is of basic importance to bear in mind that Rule 7 is concerned with the procedure to be adopted in relation to the specified categories of leave applications which are objectionable on their face and which are therefore not applications which should be allowed to progress in accordance with the ordinary procedures. In our view, none of the provisions relied on, when correctly construed in their proper context, is inconsistent with the abovementioned construction of Rule 7.

* Section 24(1)

17. Section 24(1) of the Ordinance was relied on. This provides that applications to the Court for leave to appeal "shall be made by motion". It was argued that since motions are intended to lead to a hearing in open court, this provision shows that all leave applications should be in open court. We reject that argument.

18. Section 24(1) specifies the mode of initiating an application for leave to appeal. If it is a properly arguable and non-abusive application, it will indeed proceed to a hearing in open court. However, section 24(1) has nothing to do with how objectionable cases of the kind listed in Rule 7 should be treated. That is not its purpose or concern. Instead, by section 39, the Ordinance gives the Rules Committee power to make rules of court :-

"......regulating and prescribing the procedure and the practice to be followed in the Court in all causes and matters in or with respect to which the Court has jurisdiction and any matters incidental to or relating to that procedure or practice, and ...... providing generally for the better carrying out of the provisions of this Ordinance."

The Rules Committee was plainly empowered by section 39 to regulate the procedure and practice to be followed in respect of objectionable applications of the type in question ( which it did by making Rule 7.

* Section 18(2)

19. Reliance was placed on section 18(2) of the Ordinance which states :-

"The power of the Court to hear and determine any application for leave to appeal, ...... shall be exercised by the Appeal Committee."

20. It was argued that since the Appeal Committee's powers in relation to leave applications is a power delegated by the Court to hear and determine such applications, it must hold oral hearings.

21. This argument is made on the assumption that the term "hear" in the context of a power to "hear and determine" inevitably involves an oral hearing and that written representations do not suffice. Plainly, this is not necessarily the case, whether in respect of a statutory provision requiring the "hearing and determination" of appeals: eg, R v Immigration Appeal Tribunal ex p Jones (Ross) [1988] 1 WLR 477; in relation to the right to a fair hearing in administrative law: see De Smith, Woolf and Jowell, Judicial Review of Administrative Action (5th Ed, Sweet & Maxwell) §9-012; Wade & Forsyth, Administrative Law (8th Edition) 511-512; or as laid down in the international jurisprudence regarding the right to a fair and public hearing, discussed below.

22. In any event, one must once again not lose sight of the purpose and context of section 18(2). It is a section which empowers the Appeal Committee to exercise the power vested in the Court to hear and determine leave applications. Its object is to give to the Appeal Committee full powers to deal with such applications so that the entire Court does not have to be convened for that purpose. It does not follow that the Appeal Committee is obliged in every instance to hold an oral hearing, especially where the application filed is, on its face, objectionable for Rule 7 reasons. On the contrary, it is patently not the object of section 18(2) to lay down the procedures to be adopted when faced with such applications. Regulation of such cases was left by section 39 to the Rules Committee, resulting in Rule 7.

* Section 47(2)

23. Section 47 of the Ordinance deals with the "sittings and business of the Court". Section 47(2) provides :-

"All proceedings before the Court or the Appeal Committee shall be held in open court to which the public shall have access."

The remaining subsections are relevant and provide as follows :-

"(3) The Court or the Appeal Committee may, if it considers it necessary in the interests of justice or public order or security, direct that, save as provided in subsection (4), no person, other than a person nominated by the Court or the Committee, shall be in court or in the building in which the Court or the Committee sits.

(4) Subsection (3) shall not apply to a person who is required to be in the Court or building by virtue of his office or profession or an order of a court or who is otherwise required for the purposes of any proceedings to be in the Court or building or to any one person representing a newspaper or news agency.

(5) Any person who contravenes a direction under subsection (3) commits an offence and is liable on conviction to a fine of $5000 and to imprisonment for 6 months and may be forcibly removed by any police officer from the Court or building."

24. It was argued that an application for leave to appeal constitutes "proceedings" before the Appeal Committee so that section 47(2) lays down an express requirement that all such leave proceedings must be held in open court, with the public admitted. We do not accept that argument.

25. Section 47(2)'s concern is narrow. It is to regulate the access of the public to the Court and its precincts when hearings are being held in relation to properly constituted proceedings which have arrived at such hearing stage. This is clear when section 47(2) is read together with subsections (3), (4) and (5). Thus :-

25.1 The power given by subsection (3) to the Court or the Appeal Committee is to exclude certain persons in certain circumstances from being in court or in the building where the Court or the Committee sits. This only makes sense as a power to be exercised in relation to a hearing that is taking place or about to take place in relation to proceedings which are properly before the relevant tribunal and which have reached the hearing stage.

25.2 Subsection (4) limits this power of exclusion. It prevents the Court or the Appeal Committee from excluding certain specified persons (including press representatives) from the Court or building, again making it plain that we are concerned in section 47 with restricting attendance at hearings being held.

25.3 This is further reinforced by subsection (5) which assigns the penalty for contravening a direction given under subsection (3) and empowers any police officer forcibly to remove such person from the Court or building, again emphasising the narrow context involving an on-going hearing.

26. Rule 7 has an entirely different sphere of operation. It is not concerned with who can be excluded from hearings of proceedings held before the Court or the Appeal Committee. It does not seek to deny anyone a public and oral hearing in proceedings which are properly so constituted. It is concerned with filtering out applications which would constitute an abuse of the process of seeking leave to appeal. Whether a purported application for leave to appeal falls within a Rule 7 category is a question which arises at the stage when the application for leave to appeal is filed. There is accordingly no overlap and no inconsistency between section 47 and Rule 7.

* Rules 13(3) and 18(3)

27. Section 25 of the Ordinance enables the grant of leave to appeal to be conditional on the applicant meeting certain requirements, such as putting up security for the costs of the appeal. After such conditions are satisfied, the applicant must apply for final leave to appeal. Rule 13(3) provides that the Court may determine such an application for final leave without a hearing.

28. This rule was relied on as showing that express provision is made where the Rules intend to dispense with a hearing. Since Rule 7 does not contain such express provision, it was argued that it cannot be construed as permitting dismissal of a leave application without a hearing.

29. We reject that argument. The fact that Rule 13(3) expressly dispenses with a hearing does not imply that in the absence of express words, a hearing is necessary in every case. Indeed, if such an argument were to have any force, Rule 18(3) would favour the opposite conclusion. Rule 18 provides for cases where the applicant, having had leave to appeal, fails to prosecute the appeal. Where this occurs, the Registrar issues a summons calling on the appellant to show cause before the Court why the appeal should not be dismissed for non-prosecution, with Rule 18(3) adding that "each Respondent shall be entitled to be heard at the hearing of the summons and to ask for his costs and other relief". The logic of the abovementioned argument leads to the suggestion that an entitlement to a hearing under the Rules only arises where there is express provision for this to occur.

30. Both approaches are unduly mechanistic and are inappropriate. Each rule must be construed in context and in the light of its object and purpose.

30.1 As previously discussed, Rule 7 aims to prevent the progress of applications for leave to appeal which are unsustainable by a procedure which first allows the applicant a chance to make representations as to viability.

30.2 Rule 13 dispenses with a hearing in a different context and for different reasons. It concerns leave applications which, far from being objectionable, have already attracted the grant of conditional leave. The parties are properly before the court and, without express dispensation, would normally expect to appear on an application for final leave to appeal. However, whether the applicant has complied with the relevant conditions is generally uncontroversial (and often, in the relation to matters such as putting up security or filing relevant documents, within the knowledge of the Court Registry). It is therefore not surprising that Rule 13 expressly empowers the Court to dispense with a hearing on the grant of final leave.

30.3 Similarly, because Rule 18(3) involves dismissing an appeal where leave has already been granted, it is not surprising that the rule expressly provides for a hearing where the appellant and the respondents can be heard.

30.4 But the situations dealt with by Rules 13(3) and 18(3) are so different from the concerns of Rule 7 that no extrapolation from the former to the latter in respect of a right to a hearing is justified.

* Rules 9, 10 and 12

31. Taken in context, none of these rules advance the applicant's claim to a right to a hearing. They are all preceded by the "weeding-out" provisions of Rule 7 and must be read as rules directed at regulating the procedure of applications which have not fallen at the Rule 7 hurdle and so are to proceed to a hearing before the Appeal Committee. Thus, when by Rule 9, the Registrar is directed to appoint dates for the hearing, he has previously, by Rule 7, already been directed to intervene if an application is objectionable in one of the ways listed in Rule 7. The Rule 9 direction has obviously to be read as applicable if Rule 7 has not been triggered. It is on the same basis that Rule 10 directs the Registrar to notify all the parties of the date appointed for the hearing and Rule 12 provides for the number of counsel to be heard at the hearing. Reference was also made to Rule 52(1). However, that rule is merely the equivalent of Rule 9 applicable to applications in general. It has no bearing on whether an applicant for leave to appeal was intended to have a right to a hearing.

32. It follows from the foregoing discussion that on its true construction in its statutory context, Rule 7 :-

32.1 does permit the Registrar to restrict the manner of showing of cause to the filing of written submissions;

32.2 does permit the Appeal Committee to consider and determine leave applications caught by the rule on the papers and without an oral hearing; and,

32.3 is not inconsistent with any section of the Ordinance or any other provision of the Rules.

The constitutional position

33. Two issues touching on the constitutional position need to be addressed.

33.1 First, does disposing of an application for leave to appeal caught by Rule 7 on the papers and without an oral hearing contravene BOR 10 by depriving the applicant of his right to a hearing?

33.2 Secondly, if dispensing with a public hearing may be constitutionally justifiable if "prescribed by law" within the meaning of BL 39, is Rule 7 sufficiently clear to satisfy the "prescribed by law" requirement?

* Is there a contravention of BOR 10?

34. BOR 10 provides as follows, the italicised words being of particular relevance :-

"All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

35. BOR 10 is materially in substantially similar terms to Article 6(1) of the European Convention on Human Rights ("Art 6(1)") which provides as follows (with the equivalent words italicised) :-

"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."

36. As the Court of Final Appeal has held, it is often appropriate to refer to the jurisprudence of the European Court of Human Rights ("E Ct HR") and to the decisions of other international and national tribunals regarding international and constitutional instruments having substantially similar provisions: Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at §59. The jurisprudence of the E Ct HR on Art 6(1) is enlightening in the present context and should be given substantial weight in deciding the scope and effect of BOR 10.

37. The following propositions can be derived from such jurisprudence, namely :-

37.1 The right to a hearing is not absolute but may be subject to limitation if the restriction pursues a legitimate aim, if there is a reasonable proportionality between the means employed and the aim sought to be achieved, and if the restriction is not such as to impair the very essence of the right: eg, Ashingdane v United Kingdom (1985) 7 EHRR 528 at §57 and Tolstoy-Miloslavsky v United Kingdom (1995) 20 EHRR 442 at §59.

37.2 The right to a hearing arises under Art 6(1) only in relation to "the determination of [a person's] civil rights and obligations", the equivalent BOR 10 words being "in the determination of his rights and obligations in a suit at law". The right is therefore engaged only where the rules and proceedings in question are decisive of the substantive rights of the person in question, and has no application to merely interlocutory or case management issues: Jacobsson v Sweden (No 2) Case No (8/1997/792/993) Judgment, 19.2.98 at §38 ; Fayed v United Kingdom (1994) 18 EHRR 393 at §56; and APIS v Slovakia Application 39754/98 (Admissibility decision).

37.3 In relation to first instance hearings, the right to a hearing generally entails an entitlement to an oral hearing held in public unless there are exceptional circumstances that justify dispensing with such a hearing (Fredin v Sweden (No 2) No 20/1993/415/494 at §21; and Fischer v Austria (1995) 20 EHRR 349 and §44). It also generally requires the court to give reasons for its decision and to pronounce its judgment in public (Hiro Balani v Spain (1995) 19 EHRR 566 at §27).

37.4 However, even at first instance, the right to a hearing does not always require oral submissions. Where no findings of fact are needed and oral submissions are considered unnecessary, the court may properly decide the case on the basis of written submissions: Jacobsson v Sweden (No 2) No. 8/1997/792/993, Judgment, 19.2.98 at §49.

37.5 Whether proceedings on appeal are consistent with the protected right is judged by asking whether the purposes of the Article have substantially been met, taking into account not merely the appeal, but the entirety of the proceedings, looking realistically at what the court's powers were and how the applicant's interests were presented and protected before the court: Pretto v Italy (1984) 6 EHRR 182 at §27; Helmers v Sweden, No 22/1990/213/275, Judgment 26 September 1991 at §31; Ekbatani v Sweden (1988) 13 EHRR 504 at §28.

37.6 Thus, where there has been a fair and public hearing at first instance, relatively little is required to give effect to the right at the appellate stage. Where, for instance, dismissing the appeal on legal grounds indicates that the appellate court is merely approving and making final the decision below, there may be no violation of the right where the appeal is dismissed without a hearing and without publicly pronouncing judgment, but with the court merely serving its written decision on the applicant: Axen v Germany (1983) 6 EHRR 195; see also Sutter v Switzerland Judgment 23 January 1984 (originally application no. 8209/78).

37.7 The right to a hearing is even more easily satisfied in relation to applications for leave to appeal made to a final court of appeal where there have already been public hearings with reasoned judgments in courts at more than one level below and where the application for leave to appeal raises only narrow questions relating to known criteria for granting or refusing leave: Helmers v Sweden Case No. 22/1990/213/275, Judgment 26 September 1991 at §36.

37.8 Thus, refusal of leave to appeal by the Privy Council without reasons has been held not to involve a violation : Charlene Webb v United Kingdom (1997) 24 EHRR CD 73.

37.9 A similar approach was taken in relation to refusal of leave by the House of Lords in Nerva v United Kingdom Application 42295/98, 11.7.00.

38. In Hong Kong, in civil cases, an application for leave to appeal to the Court of Final Appeal is almost invariably preceded by decisions in the Court of First Instance and the Court of Appeal where oral and public hearings have been held and reasoned judgments delivered. The criteria for granting or refusing leave to appeal in civil cases are narrow and set out in section 22 of the Ordinance. Applying the principles discussed above, there can be no doubt that where the Appeal Committee dismisses an application for leave to appeal which has gone through the Rule 7 procedure, the applicant's right to a hearing has not been violated. Viewed in the context of the entirety of the proceedings and bearing in mind that the applicant has been given a specific further opportunity to make written representations in support of his application for consideration by the Appeal Committee, the requirements of BOR 10 have in substance clearly been met.

39. Rule 72(1) of the Rules further enhances the openness and public character of the relevant procedures. It provides :-

"Any person may, upon payment of the prescribed fee, inspect the Register of Appeals, and search for, inspect and obtain a copy of any of the following documents filed in the Registry of the Court ( (aa) the application for leave to appeal; (a) the Notice of Appeal; (b) the formal and reasoned judgments of the Court; and (c) with the leave of the Registrar, which may be granted on an application made ex parte to the Registrar, any other document."

In a Rule 7 case where there has been no public hearing of the application for leave to appeal, Rule 72 provides the means by which an interested member of the public may, on application to the Registrar, obtain access to the documents filed in relation to that application (apart from the documents specified which he can inspect as of right). In such a context, since the Registrar must exercise his discretion in a manner compatible with the right to a fair and public hearing protected by BOR 10, access would normally be granted.

40. For the foregoing reasons, the determination of applications for leave to appeal on the papers and without an oral hearing or reasons beyond referring to the relevant Rule 7 grounds does not contravene BOR 10.

* Is Rule 7 sufficiently clear to satisfy the "prescribed by law" requirement?

41. It will be evident from the construction of Rule 7 discussed above that we are of the view that the effect and purpose of the rule is clear. Accordingly, to the extent that the right to a hearing protected by BOR 10 is restricted by Rule 7, it is a restriction which is duly "prescribed by law" for the purposes of BL 39.

Conclusion

42. For the reasons given above, the applicant's motion herein seeking to set aside the Rule 7 summons and the order of Chan PJ referred to at the beginning of this decision is dismissed.

43. The Rule 7 procedure in relation to the applicant's application for leave to appeal should now be resumed and the Appeal Committee as presently constituted should proceed to consider the matter (including the applicant's written submissions) and decide whether the application should or should not be dismissed pursuant to Rule 7(2).

44. By virtue of the express words of section 18(3) of the Ordinance, the eventual decision of the Appeal Committee, whether in favour or against the grant of leave, will not be subject to appeal. We wish to make it clear that the present decision disposing of the applicant's motion forms an integral part of the Appeal Committee's determination of that application for leave to appeal and is therefore itself final and not subject to appeal.

Operation of Rule 7

45. The Appeal Committee has taken a most exceptional course in entertaining the present application. This was done since it was considered desirable, in the light of the challenge made to the procedure, to undertake a review of the legal and constitutional validity of the Rule 7 procedure.

46. Rule 7 has an inbuilt procedure to cater for an applicant who wishes to challenge the Registrar's decision to issue a Rule 7 summons in his case. The applicant does so by showing cause why his application for leave to appeal should not be dismissed pursuant to the Rule 7 procedure by placing before the Appeal Committee written submissions raising all the points which he wishes to rely on for this purpose. Having confirmed the legal and constitutional validity of the Rule 7 procedure in this decision, we wish to emphasise that that inbuilt procedure for showing cause is the prescribed and only valid means for challenging any aspect of a Rule 7 summons or for seeking to sustain the application for leave to appeal. We stress that this is so whatever may be the grounds of any challenge. This includes any attempt to mount a fresh challenge to the legality or constitutionality of the Rule 7 procedure itself, if any applicant should see fit to mount such a challenge notwithstanding the present decision.

47. To permit an applicant served with a Rule 7 summons to by-pass the prescribed procedure and to secure an oral hearing before the Appeal Committee by the simple expedient of issuing a motion extraneous to the Rule 7 procedure would entirely defeat the purpose of that procedure. Accordingly, it would not be proper and would amount to an abuse of the Court's process for any applicant in respect of whose application for leave to appeal a Rule 7 summons has been issued, to invoke any procedure (whether by issuing a motion, a summons or other application) outside the confines of Rule 7 itself with a view to challenging any aspect of the Rule 7 summons or with a view to sustaining his application for leave to appeal.

48. With effect from the handing down of this decision, the Registrar and the Registry staff are directed not to accept for filing any such extraneous applications in the present or any other case. If, despite such refusal, an applicant insists on leaving at the Court Registry papers by which he purports to make some extraneous application, he may be allowed to leave those papers in the Registry's premises but should be informed that the Registry has been directed not to place such papers on the court file or to take any further steps in respect thereof; and that any papers he leaves will be retained at his disposal for a period of 7 days, after which they may be destroyed without further notice to him. If such an application has been filed, the Registry should decline to list the same for a hearing and should take no further steps in respect of that application. The Registry should adopt the aforesaid approach on the ground that the purported invocation of extraneous procedures in Rule 7 cases constitutes an abuse of the Court's process. These directions are without prejudice to such an applicant showing cause in writing in accordance with Rule 7 within the period specified by the Rule 7 summons.

Representation: