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

HCMP 415/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 415OF 2014

(ON AN INTENDED APPEAL FROM DCCJ NO 2259 of 2013)

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J U D G M EN T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 18 September 2015, after hearing counsel, this court (Lam VP and Chu JA) refused the application for leave to appeal to this court in respect of a judgment of Judge Kent Yee in DCCJ 2259 of 2013. That was a renewed application after the court refused leave on paper on 6 August 2015. Notwithstanding the able submissions of Mr Chan SC advanced at the hearing on 18 September 2015, the court was not persuaded that it was reasonably arguable that Wong King Lim v Incorporated Owners of Peony House [2013] 4 HKC had changed the law as laid down in Incorporated Owners of Man Hong Apartments v Kwong Yuk Ching [2001] 3 HKC 116, Incorporated Owners of No 27A Chatham Road, Kowloon v Lee Kai Kong [2001-2003] HKCLRT 273, and Incorporated Owners of Mountain View Mansion v. Heart Cuisine and Ors [2012] 4 HKLRD 628. In short, the court maintained its views set out in the judgment of 6 August 2015.

2.  On 15 October 2015, the Defendant issued a Notice of Motion seeking leave to appeal to the Court of Final Appeal. 

3.  As Section 63B of the District Court Ordinance, Cap 336 provides that the court’s decision on refusal of leave to appeal to the Court of Appeal is final, the application for leave to further appeal is incompetent.  The Defendant however contended that Section 63B is unconstitutional as it is inconsistent with Art 82 of the Basic Law.

4.  In China International Fund Ltd v Dennis Lau [2015] 4 HKLRD 609 at paragraph 9, based on earlier judgments of the Court of Final Appeal, another division of this court summarized some general propositions in a challenge based on Art 82.  In the present context, in light of the submissions of the parties, the crucial question is whether the limitation is no more than necessary to accomplish the legitimate aim. 

5.  The legitimate aim was identified by Chief Justice Li in A Solicitor v The Law Society of Hong Kong (2003) 6 HKCFAR 570 at paragraph 36, “… to prevent [the Court of Final Appeal] at the apex of the judicial system from being unduly burdened with appeals so as to enable it to focus on appeals, the judgments of which will be of importance to the legal system.”  Further, in the context of appeals from District Court, an additional legitimate aim is that in cases from that court, being one with limited jurisdiction, finality should be achieved in a costs-effective and proportionate manner for the litigants as well as the judiciary in the public administration of justice.  Thus, there comes a point at which cases manifestly with no merit should be filtered out.     

6.  In order to resolve this constitutional challenge, the court directed that the Secretary for Justice be invited to consider joining in the application.  On 4 November 2015, the Secretary for Justice indicated that he would intervene.  Directions were subsequently given to facilitate the intervention and the lodging of written submissions in order to have the matter decided by a three-judge court (comprising also the Chief Judge) on paper.

7.  There was a hiccup in the lodging of submissions.  In their Reply Submissions filed on 18 January 2016, Mr Lee SC (together with Ms Ng) for the Defendant, raised some new arguments which, in our view, should have been canvassed in their first set of submissions filed on 26 October 2015 in light of an authority binding on this court which counsel should be aware of: Hong Kong Housing Society v Wong Nai Chung HCMP 880 of 2009, 22 Sept 2010 (CA) (both of them were counsel in that case).  The new arguments addressed a crucial point: counsel tried to persuade this court not to follow Wong Nai Chung based on these new arguments.  The court therefore gave directions on 27 January 2016 that the Plaintiff and the Secretary for Justice be at liberty to file a further round of submissions to deal with the new arguments.  The court also invited counsel for the Defendant to explain the position.

8.  In a letter of 3 February 2016, Mr Lee explained that the new arguments were only conceived by him in his preparation of another case after the filing of the submissions on 26 October 2015.  He accepted responsibility for failing to address the Court of Appeal judgment of Wong Nai Chung in the first round of his submission.  Instead, what they had done was to refer only to the decision of the Appeal Committee in Wong Nai Chung, which did not find it necessary to consider this aspect of the application at length.  Counsel now accepted that they should also have referred to the Court of Appeal judgment.  Mr Lee also contended the other arguments canvassed in their first set of submissions already addressed why the Defendant said that Court of Appeal judgment was clearly wrong.

9.  The Plaintiff and the Secretary for Justice filed their respective submissions on the new arguments according to our directions.   

10.  In Hong Kong Housing Society v Wong Nai Chung HCMP 880 of 2009, 22 Sept 2010 (CA), the same constitutional challenge was made in respect of Section 63B.  In the judgment of Tang VP (as he then was), after referring to A Solicitor v The Law Society of Hong Kong (2003) 6 HKCFAR 570, it was held that Section 63B satisfied the proportionality test in limiting the Court of Final Appeal’s power of final adjudication.  Mr Lee was counsel for the defendant in that case.  The main points canvassed by him on proportionality in the submissions of 26 October 2015 were similar to those canvassed before Tang VP.  The only additional point in substance in the submissions of 26 October 2015 was that the scope of finality for District Court appeals was an “unintended consequence” of the Civil Justice (Miscellaneous Amendments) Ordinance 2008 and not within the contemplation of the Working Party.

11.  With respect, we do not accept that the finality was unintended.  Mr Wong SC (advancing submissions together with Mr Liu on behalf of the Secretary for Justice) went through the history of finality in the refusal of leave in District Court cases in their submissions of 28 December 2015.  As counsel submitted, it had always been the position (even before the Civil Justice Reform) that all appeals from the District Court to the Court of Appeal, final or interlocutory, required leave and the decision of the Court of Appeal refusing leave was final, see the then section 63(1) of the District Court Ordinance, Hong Kong Civil Procedure 2008, paragraphs 59/1/2; 59/1/41; 59/14/22.  The reports of the Working Party on Civil Justice Reform only focused on the leave requirement relating to High Court cases because that was where changes were proposed and views were canvassed.  Section 63B was enacted to set out in statutory form what had always been the position under the combined effect of the common law and the requirement of leave for all cases in the District Court.  This was also the view of Yeung VP in Ho Kang Yau v Ho Chung Wing, CACV 42 of 2011, 11 Nov 2011, at paragraph 4. 

12.  In his reply submissions of 18 January 2016, Mr Lee further argued that the pre-CJR common law rule (that refusal of leave was final) was based on Lane v Esdaile [1891] AC 210.  However, counsel contended that that rule had been substantially impaired by the subsequent decision of the Privy Council in Campbell v The Queen [2011] 2 AC 79. The latter was a decision on the interpretation of section 3 of the Judicial Committee Act 1833 and section 1 of the Judicial Committee Act 1844 in respect of appeals from Jamaica.  By reason of a combination of factors set out at paragraph 21 of that judgment, the Board held that the rule in Lane v Esdaile was not applicable for appeals from Jamaica to the Privy Council and the Board could grant special leave to appeal even though the Court of Appeal of Jamaica refused leave to appeal from the conviction by the first instance court.

13.  We are not concerned with any appeal to the Privy Council.  Nor are we concerned with special leave, there being no provision for the same in our Hong Kong Court of Final Appeal Ordinance, Cap 484 [“HKCFAO”].  Mr Lee however submitted we should adopt the approach in Campbell v The Queen, supra, since the Court of Final Appeal was intended to take on the role formerly played by the Privy Council and its operation was intended, according to statement made in the Hansard at the time of enactment of the HKCFAO, to be based on the principles and practices of the Privy Council.  Thus, Mr Lee submitted as a litigant could appeal to the Privy Council by special leave even though the Court of Appeal had refused leave to appeal to itself, by the same token, the defendant should be able to do so in seeking to appeal to the Court of Final Appeal.

14.  Mr Lee therefore submitted that Wong Nai Chung was plainly wrong as it was decided on the basis of an erroneous underlying assumption. 

15.  With respect, we do not accept this line of argument.  As Mr Wong and Mr Ng (for the Plaintiff) rightly pointed out, the right to appeal to the Court of Final Appeal is governed by section 22(1)(b) of the HKCFAO and we are only concerned with the construction of that section instead of section 3 of the Judicial Committee Act 1833 and section 1 of the Judicial Committee Act 1844 [JCAs]. The wordings in those statutory provisions are demonstrably different: The HKCFAO only refers to “judgment of the Court of Appeal” whilst much wider wordings are used in the special leave provision in the JCAs.  Once this is appreciated, it becomes clear that the reasoning in Campbell v The Queen, supra, has no application in the present context.  The combination of factors in paragraph 21 of that judgment is simply not there.

16.  On the interpretation of section 22(1)(b), we agree with Mr Wong and Mr Ng that we are bound to follow the decision of the Appeal Committee in HLF v MTC (2004) 7 HKCFAR 167.  A refusal of leave to appeal to the Court of Appeal is not a judgment of the Court of Appeal in the context of that section.

17.  We also agree with Mr Wong that there is a conceptual and substantial difference between the role of the Privy Council (over the entire Commonwealth) and the role of the Court of Final Appeal in Hong Kong under our One Country, Two Systems regime.  Bearing in mind the historical and social context in which our Court of Final Appeal was established and its role as the final court of adjudication in Hong Kong in the context of the Basic Law (see China Field Ltd v Appeal Tribunal (Buildings) (No 1) (2009) 12 HKCFAR 68 at paragraphs 13 to 17), the applicability of the rule in Lane v Esdaile is sound in principle.  Thus, it may be more appropriate to draw a parallel between our Court of Final Appeal and the House of Lords in that case, rather than the Privy Council. 

18.  As Mr Wong submitted, there is an inconsistency between adopting the special leave approach (which permits direct appeal from the first instance court to the Privy Council) and the highly circumscribed requirements in section 27C of the HKCFAO on the leapfrog procedure.  The latter reinforces the parallel between our Court of Final Appeal with the House of Lords, see Young & Ghai, Hong Kong’s Court of Final Appeal (2014), Chap 7 (by Antonio Da Roza) at p.187.

19.  With respect, we do not find Mr Lee’s references to the Hansard to be of much assistance in the present context.  

20.  As a matter of English law, Campbell v The Queen, supra did not water down the rule in Lane v Esdaile, see Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441. 

21.  In Hong Kong, we do not find anything in section 22(1)(b) or the Basic Law to mandate the adoption of the approach in Campbell v The Queen, supra. We are bound by HLF v MTC, supra, to hold that the rule in Lane v Esdaile should be applied in the construction of this section.

22.  Thus, Mr Lee failed in persuading us that Wong Nai Chung was plainly wrong. On the contrary, we are in agreement with Tang VP’s reasons for holding that Section 63B is proportionate. In any event, it is a decision binding on us and it has been followed by another division of this court in Ho Kang Yau v Ho Chun Wing CACV 42 of 2011, 11 Nov 2011, which is also binding on us.

23.  We therefore hold that the present case does not involve an appeal against a judgment from the Court of Appeal within the meaning of Section 22(1)(b) and the intended appeal to the Court of Final Appeal is incompetent by reason of Section 63B.

24.  We dismiss the Notice of Motion and order the Defendant to pay the Plaintiff the costs of the Motion, such costs are to be taxed on indemnity basis in view of the clear authorities against the Defendant’s application. Pursuant to the consent order of 27 November 2015, there will be no order for costs as between the Defendant and the Secretary for Justice.

25.  Last but not least, we are grateful for the assistance from counsel.

Re: Application for Leave to Appeal heard on 18 September 2015

Re: Leave to Appeal to the Court of Final Appeal