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Bearing these concerns in mind, the Working Party's view (supported by the judges of
the Court of Appeal) is that Proposal 42 should be adopted
with the following
elaboration
:-
(a)
The leave requirement to be introduced should relate only to appeals from the
CFI judge to the Court of Appeal (but should not affect cases where leave to
appeal is already regulated by statute
).
(b)
As previously discussed,
appeals from the master to the judge (whether from
the master's decision on the papers or after a contested hearing) should remain
available as of right but subject to a rule precluding, save in exceptional
circumstances,
the introduction of fresh evidence on the appeal.
(c)
Where a judgment deciding the substantive rights of a party is obtained through
a summary process, by way of exception, there should be an appeal as of right
notwithstanding the interlocutory nature of that decision. Thus, where summary
judgment (whether final or for damages to be assessed) is obtained against a
or the inherent jurisdiction, an appeal to the Court of Appeal should
lie as of right. For the avoidance of doubt, it ought to be made clear
that the
same applies to a determination of a question of law pursuant to O 14A or
determination of a preliminary issue under O 33.
Notes
Requiring amendment to section 14 of the HCO.
Leave requirements concerning appeals from the Court of Appeal to the Court of Final Appeal are
already laid down in the Hong Kong Court of Final Appeal Ordinance, Cap 484 and do not call for
further consideration here.
As in the case of the Labour Tribunal Ordinance, Cap 25, ss 32 and 35A and the Small Claims
Section 17.4 above.
Such as the circumstances laid down in Ladd v Marshall [1954] 1 WLR 1489.
It should be noted that section 14(4) of the HCO specifically provides that rules made under section
54 may provide "for orders or judgments of any prescribed description to be treated for any
prescribed purpose connected with appeals to the Court of Appeal as final or as interlocutory."
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