SAM WOO MARINE WORKS LTD v. THE INCORPORATED OWNERS OF PO HANG BUILDING

Press Summary (English)

Press Summary (Chinese)

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)

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REASONS FOR JUDGMENT

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Chief Justice Ma:

1. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Ribeiro PJ:

2. At the hearing, the Court dismissed this appeal with reasons to follow.  These are my reasons.

3. 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 63B[4]  provides that no appeal lies from the Court of Appeal’s decision to refuse (or grant) leave.

4. 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...”

A.  How the issue arises

5. 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.

6. The appellant failed to file a defence in time, leading to the IO’s application for judgment in default.  This was met by the appellant’s application for an extension of time to file its defence and counterclaim, contending that the IO’s claim was defeated by limitation and that the appellant had acquired title to the service lane by adverse possession.

7. His Honour Judge Kent Yee[6]  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 appellant’s purported acquisition of a possessory title.

8. 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 dismissed[8]  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.

9. The appellant next applied to the Court of Appeal for leave to appeal against the Judge’s decision refusing leave to file out of time and entering judgment in the IO’s 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 hearing[10]  but the Court of Appeal remained unpersuaded that the appellant’s case was reasonably arguable. 

10. The appellant proceeded to seek the Court of Appeal’s leave to appeal to this Court against that Court’s refusal to grant the appellant leave to appeal to itself against Judge Kent Yee’s 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 decision[12]  and the reasoning of the Appeal Committee in HLF v MTC,[13] Lam VP upheld the constitutionality of section 63B as a proportionate restriction and dismissed the application.

11. 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

12. In most cases, constitutional challenges are founded on an applicant’s 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 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] 

13. 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”. 

14. However, any restrictions on rights of appeal (eg, by finality provisions confining appeals to intermediate courts) have a limiting effect upon the Court’s 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.”

15. 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 Court’s constitutional function of final adjudication.  This requires the relevant provisions to be construed.

C.  Construction of the statutory provisions

C.1  The appellant’s argument

16. 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:

“... 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] 

17. The argument runs as follows:

(a) Section 22(1)(b) of the Court’s 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 Court’s discretionary jurisdiction, notwithstanding what DCO section 63B says.

18. 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 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

19. 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. 

20. The scope of the Court’s 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).

21. 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] 

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 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

23. Quite apart from the lex posterior rule, a line of authority beginning with Lane v Esdaile[25] 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.

24. 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”.

25. The House of Lords held that on a purposive construction of the provisions, given the requirement to obtain the Court of Appeal’s leave to appeal from the first instance judgment, that Court’s 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 appeal—that there should not be an appeal unless some particular body pointed out by the statute... [that is, the Court of Appeal[29] ], should permit that an appeal should be given.”[30] 

26. His Lordship pointed out[31]  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] 

27. The House of Lords’ decision was succinctly summarised a year later by Lord Esher MR in Ex p Stevenson[34] who stated:

“...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.”

28. 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 Esdaile’s 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] 

29. 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 Appeal’s 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] 

30. 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.

31. 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 Appeal’s 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 Appeal’s 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.

32. 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.

D.  Constitutional validity - Proportionality

33. A finality provision which prevents a class of cases from reaching the Court of Final Appeal limits the Court’s 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] 

34. This Court’s 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 Court’s 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

35. 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]  

36. 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.”

37. 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.

38. 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 this context that the District Court’s general civil jurisdiction is limited to claims which do not exceed $1 million.[47]  

39. The statutory restrictions seek to avoid the kind of situation that arose in Piglowska v Piglowski,[48]  where the modest amount of a couple’s 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] 

40. Similar points were made in Hong Kong Housing Society and Secretary for Justice v Wong Nai Chung,[51]  and in HLF v MTC.[52] 

41. 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

42. Two main arguments have been advanced on the appellant’s behalf to contend that the finality provision in the present case goes disproportionately beyond what is necessary.

43. The first is the suggestion that section 63B imposes an absolute ban so that, in line with this Court’s 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.

44. In Solicitor v Law Society, the restriction contained in section 13(1) of the Legal Practitioners Ordinance[55]  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 view, be said to be reasonably proportionate to any legitimate purpose which may underlie the finality provision.”[58] 

45. 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] 

46. 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.

47. 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 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] 

48. 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.  

49. The appellant’s 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 Rules[64]  which the Court ought itself to operate in the exercise of its power of final adjudication.  The contention is that allocating the screening process to the Court of Appeal in itself constitutes an unnecessary and disproportionate restraint on the Court’s power of final adjudication. 

50. Mr Martin Lee SC[65]  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 Court’s 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. 

51. That argument involves a complete departure from the proportionality analysis.  The DCO’s restriction of the Court’s 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.

52. The appellant’s 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 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 Court’s Appeal Committee, requiring unaffordable costs to be incurred and greatly delaying resolution of their claims. 

53. Mr Lee SC’s 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 appellant’s 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 appellant’s 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

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

E.  Conclusion

55. 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 Court’s 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 respondent’s costs.[66]  It follows that restoring the adjourned aspects of the leave application would serve no purpose.

Mr Justice Tang PJ:

56. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Fok PJ:

57. I agree with the judgment of Mr Justice Ribeiro PJ.

Mr Justice Gleeson NPJ:

58. I agree with the judgment of Mr Justice Ribeiro PJ.