Why v. Lty

CAMP 106/2020

[2021] HKCA 1176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 106 OF 2020

(ON INTENDED APPEAL FROM FCMC 16387 OF 2012)

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Before : Hon Kwan VP and Cheung JA in Court

Date of Decision : 11 August 2021

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D E C I S I O N

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Hon Cheung JA (giving the decision of the Court) :

1.On 29 March 2021 this Court (Lam VP and Cheung JA) refused the respondent husband’s application for leave to appeal against the judgment of H H Judge K K Pang dated 14 October 2019. The respondent now applies for leave to appeal to the Court of Final Appeal against our refusal to grant leave.

2.The application is totally misconceived.  Section 63B of the District Court Ordinance (Cap. 336) provides that no appeal lies from a decision of the Court of Appeal as to whether or not leave to appeal to it should be granted.  As the Court of Final Appeal held in Po Hang Building (10) v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240 per Ribeiro PJ :

‘ 32. For the foregoing reasons, I conclude that on its true construction, DCO s.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.’

3.Ribeiro PJ further held :

‘ 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. ...’

4.The application is dismissed.  As the petitioner did not respond to the application, we will make no order as to costs.

Hampton, Winter and Glynn assigned by the Director of Legal Aid, for the Petitioner

Mr George Chu, instructed by K. B. Chau & Co., for the Respondent