Ch 7 Appeals

Lawyer: “Judge, I wish to appeal my client’s case on the basis of newly discovered evidence.”
Judge: “And what is the nature of the new evidence?”
Lawyer: “I have recently discovered that my client still has HK$5000 left”.

[This chapter is under construction]

Introduction Appeals from the Family Court (District Court) and the High Court are to the Court of Appeal. Appeals from the Court of Appeal (CA) are to the Court of Final Appeal (CFA). Appeals to the CFA should never be viewed by appellants as a second (or third) ‘bite of the cherry’ – Appeals to the Court of Final Appeal are wholly different from appeals from the lower courts to the Court of Appeal.

Judiciary Guide to Appeals

For a general guide to Appeals – including a helpful timetable of the relevant time limits – download the ‘How to Appeal’ document at L10 here

Application to the Family Court for Leave to Appeal to the Court of Appeal

Leave to appeal by way of Inter-Partes Summons for leave to appeal to the Court of Appeal against a Judgment handed down in the Family Court:

Section 63(1) District Court Ordinance (Cap. 336) allows that – subject to subsection (3) an appeal can, with leave of a judge or the Court of Appeal, be made to the Court of Appeal from every judgment, order or decision of a judge in any civil cause or matter. The source of jurisdiction for the application is section 63A of the and the practice and procedure of the application is governed by Order 58 of the Rules of the District Court (Cap 336H) and Order 59 rule 2A of the Rules of the High Court (Cap 4). Leave to appeal shall not be granted under section 63A of the District Court Ordinance unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice that the appeal should be heard.

The relevant test of whether an appeal has a reasonable prospect of success under section 63A is whether the applicant for leave can show that he has an arguable case with reasonable chances of success on appeal.  A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” – KNM v HTF HCMP 288/2011.

In G v G [1985] 2 All ER, the House of Lords held that a court should take great care before setting aside a decision of a judge which had involved the exercise of a judicial discretion. The court considered the duty of an appellate court in a children case:

‘What this court should seek to do is to answer the question whether the court discerns a wrongness in the result of so striking a character as to make it a legitimate conclusion that there must have been an error of method – apart, of course, from a disclosed inclusion of irrelevant or exclusion of relevant matters . . the appellate court should only interfere when they consider that the judge of first instance has not merely preferred an imperfect solution which is different from an alternative imperfect solution which the Court of Appeal might or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.’

The Hong Kong Court of Appeal adopted the similar approach in the case of RK v YS HCMP1969/2012 – where Kwan JA said at para 6:

“The father’s appeal is an appeal against the exercise of discretion of the deputy judge. It is well established that in an application for custody involving the exercise of judicial discretion, it is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, that an appeal court is entitled to interfere … the appropriate weight to be given to any item of evidence is a matter for the trial judge, not for the appeal court.” See also TPL v WYY HCMP 316/2013

Appeals to the Court of Final Appeal

Unlike normal civil appeals, it appears that Matrimonial appeals to the CFA will only be allowed on a discretionary basis, even where the ‘value’ of the case exceeds HK$1 million under section 22(1)(a) Court of Final Appeal Ordinance (Cap 484)

See WLK v. TMC [2009] HKCFA 104; [2010] 1 HKLRD 495; (2009) 12 HKCFAR 473; [2010] 2 HKC 102; FAMV50/2009 (3 December 2009) where it was held that neither limb of section 22(1)(a) encompasses claims for ancillary relief. See China Field Ltd v Appeal Tribunal (Buildings) (No. 1),[2009] 2 HKLRD 135.

Appeals Based on Counsel or Solicitor’s Alleged Negligence

HKSAR v Ou Jeijing CACC 460/2011 – this savage Court of Appeal judgment, criticising senior counsel, relates to criminal law but it has wider import given the creeping tendency in Hong Kong (astonishingly, too often supported by some in the profession), where a client’s case is unsuccessful and there are no obvious grounds for appeal – then if all else fails ‘blame the lawyers’. As Hon Stock VP observed ‘All this stems, not from a desire to cause anxiety, but from a culture that has developed at the criminal bar in this jurisdiction whereby allegations against other counsel are too easily made with insufficient regard, unless one has been at the receiving end, to the burden that is placed on counsel (or solicitor, as the case may be) against whom the attack is launched, and to the heavy anxiety suffered by a person whose competence or integrity is thereby placed under scrutiny.  It is incumbent on appellate counsel never to advance such allegations unless there is a palpably sound basis to do so; and to be ever sensitive to the gravity of such allegations and to the courtesy that should flow between counsel, dictating a fulsome apology the moment it is apparent that an assertion is ill‑founded or exaggerated.’

Coming soon …