HO KANG YAU v. HO CHUN WING

CACV 42/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 42 OF 2011

(ON APPEAL FROM DCCJ NO. 5195 OF 2008)

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D E C I S I O N

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1.  This is the defendant’s application for leave to appeal against our judgment of 24 May 2011.

2.  The defendant had lodged an improperly constituted appeal against a District Court judgment because he had not obtained leave to appeal.  This Court considered that leave to appeal was required and proceeded to consider whether leave should be granted or not.  We decided that leave should not be granted and proceeded to strike out the notice of appeal.

3.  The position is now governed by section 63B of the District Court Ordinance (Cap. 336), namely,

‘ No appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.’

4.  Section 63B affirms and extends the common law position that the Court of Appeal’s refusal to grant leave to appeal against a lower Court decision does not constitute a judgment for the purpose of an appeal to the Court of Final Appeal : see HLF v MTC [2004] 3 HKLRD 241.  This Court in Hong Kong Housing Society and Another v. Wong Nai Chung trading as Sun Chung Flower Shop (HCMP 880/2009) was of the view that section 63B satisfies the proportionality test and does not infringe the Court of Final Appeal’s power of final adjudication under Article 82 of the Basic Law.

5.  Since our judgment is a final judgment with no further right to appeal, we will dismiss the application with costs to the plaintiff.